.9-^°°^.. ,45 JOHN ST. (JnrnpU ICaui i>rl|nnl Ktbrary KFN520o!f78" ""'""''*' '■'*'""' "^Ifl&iMlflfllMiinifi "' ">« s'3*e of New 3 1924 022 813 681 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022813681 DECEDENT ESTATE LAW OF THE STATE OF NEW YORK Chapter Thirteen of the Consolidated Laws (Became a Law February 17, 1909; Chapter 18, Laws of 1909) TOGETHER WITH ALL AMENDMENTS THE NOTES OF THE BOARD OF STATUTORY CONSOLIDATION, NOTES OP THE ORIGINAL REVISERS OF THE REVISED STATUTES, THE REPORT OF THE COMMISSIONERS OF STATUTORY RE- VISION ON THE ORIGINALS, AND THE FULL TEXT OF ALL THE STATUTES CODIFIED IN THE DECEDENT ESTATE LAW AN INTRODUCTION, NOTES OF JUDICIAL DECISIONS AND A COMMENTARY, HISTORICAL AND EXPOSITORY, ON THE TEXT OF THE STATUTES BY ROBERT LUDLOW FO.WLER COUNSELLOR AT LAW NEW YORK BAKER, VOORHIS & COMPANY 1911 m^'if^ COPYRIGHT BY ROBERT LUDLOW FOWLER 1911 J. B. LYON COMPANY PRINTERS, ELECTROTYPERS AND BINDERS LYON BLOCK, ALBANY, N. Y. PREFACE. This volume, addressed to one of the principal Consolidated Laws of 1909, forms a part of the author's Commentaries on the more im- portant of the property statutes of this State. A portion of the present " Decedent Estate Law " was formerly contained in the " Real Property Law " of 1896. The Board of Statutory Consolidation, in the latest revision of the statutes, of their own motion transferred the article on the Descent of Real Property from the Real Property Law of 1896 to the Consolidated " Decedent Estate Law." As the article on descents formed an important part of the author's first and second editions of the Real Property Law, and was necessarily omitted from the third edition of that work, in consequence of the revisers' action just noticed, this volume is pri- marily intended to be supplementary and amplificatory of the author's third edition of the Real Property Law of New York. But as the '" Decedent Estate Law " contains much besides the article on the Descent of Real Property, it not only became necessary that the writer should make of this treatise a separate volume, but also cover the text of the entire statute. By reason of recent amendments to the statute, the topics " descent " and " distribu- tion " in particular seemed to demand a fuller exposition, on some plan which might enable the reader to see for himself the bearing of the amendments. This plan the author conceived to be of the histori- cal order, as the following pages will disclose. In a recent case ( 197 N. Y. 423) the Court of Appeals adverted to the frequent necessity of historical research in order to learn the full scope and meaning of the laws and customs of this State. Their observation is manifestly correct. But mere history, without precise application, or without full citation of adjudications and documents, such as the various revisers' notes, would be a very incomplete guide to the interpreta- tion of a particular statute. The reader will recall that the Decedent Estate Law now regulates not only devises of real property, but also the entire law of testate and intestate succession. It also contains much else of the first im- portance to lawyers. [Hi] £y Preface. The present tendency is toward a statutory expression of sub- stantive law. This tendency may be said to have taken its beginning in this State with the Revised Statutes of 1830. Wherever such a condition of the form of the law exists, the more useful legal litera- ture, it is believed, will be found, as in France, to take the shape of a commentary on the statute. As the decisions of the courts of jus- tice are necessarily based on the text of the statute, the most orderly method for a treatise of this character is to arrange the exposition of the law about the text of the statute itself. In such a treatise, the first consideration is the correct text of the statute itself, and the next, any authoritative comments by the framers of the particular statute, and finally the decisions of the courts of justice on the text of the statute. In the pages of this work concerned with the scheme of a will, the author has preferred to state general principles, rather than to pre- sent precedents of wills. It is conceived that the intelligent reader, familiar with principles, can have little use for stereotyped forms of wills, which are generally too rigid for any practical application in other cases. The writer desires to explain that in the course of preparing the present book he deemed it economical to refer the reader to his other writings, as they really constitute separate parts of one complete design, the foundations of which were laid down many years since. Otherwise, voluminous repetitions, which would have enlarged its scope beyond reasonable limits, might have ensued in this volume. This explanation will afford also the writer's apology for cross- references to his own prior writings. Without this explanation, such cross-references would, doubtless, appear to be unseemly. With such •explanation, the author trusts the reason for the method adopted will not be misunderstood by the indulgent reader. This particular treatise is an attempt to furnish, in some detail, the history and theory of application of the Decedent Estate Law. That the treatise itself completely fulfils the author's design can not be claimed. Its shortcomings the generous reader will, however, doubt- less, overlook, in consideration of the value of the documentary material, collected in this volume and highly explanatory of the Decedent Estate Law. New York, January i, 191 1. TABLE OF CONTENTS, Page Preface iii Table of Contents v Table of Cases ix Introduction 1-42 DESCENT ESTATE LAW. Article i. Short Title and Definitions. With notes and commentary on the text 43-48 Section i. Short title 43 2. Definitions 45 Article 2. Wills. With notes and commentary on the text 49-328 Section 10. Who may devise 50 11. What real property may be devised 61 12. Who may take real property by devise 67 13. Devises of real property to aliens 71 14. Wills of real estate, how construed 76 15. Who may make wills of personal estate 78 16. Unwritten wills of personal property, when allowed.... 84 17. Devise or bequest to certain societies, associations and corporations 88 18. Devise or bequest to certain corporations gS 19. Devise or bequest to certain benevolent, charitable and scientific corporations 97 20. Devise or bequest to certain bar associations and fire corporations 103 21. Manner of execution of will 106 22. Witnesses to will to write names and places of resi- dence 203 23. What wills may be proved 205 [V] vi Table of Contents. Page- Section 24. Effect of change of residence since execution of will 20^ 25. Application of certain provisions to wills previously made 213; 26. Child born after making of will 215. 27. Devise or bequest to subscribing witness 222 28. Action by child born after making of will, or by sub- scribing witness 229* 29. Devise or bequest to child or descendant not to lapse. 232: 30. Reception of wills for safe keeping 242- 31. Sealing and indorsing wills received for safe keeping.. 243; 32. Delivery of wills received for safe keeping 244- 33. Opening wills received by surrogate for safe keeping. 245 34. Revocation and cancellation of written wills 24& 35. Revocation by marriage and birth of issue 261 36. Will of unmarried woman 265, 2,7. Bond or agreement to convey property devised or be- queathed not a revocation 271 38. Charge or incumbrance not a revocation 27s 39. Conveyance, when not to be deemed a revocation 277" 40. Conveyance, when to be deemed a revocation 282- 41. Cancelmg or revocation of second will not to revive first 285, 42. Record of wills in county clerk's office 289- 43. County clerk's index of recorded wills 294. 44. Recording will found in another State or foreign county. 296 45. Authentication of papers from another State or foreign country for use in this State 310' 46. Validity of purchase notwithstanding devise 316' 47. Validity and effect of testamentary dispositions 320> 48. Application of certain sections in this article 327 Article 3. DESCENT AND DISTRIBUTION. IWith notes and commentary on the text 329-4891 Section 80. Definitions and use of terms; effect of article 329 81. General rule of descent 34p. 82. Lineal descendants of equal degree 364 83. Lineal descendants of unequal degree 367 84. When father inherits 369> 85. When mother inherits 377 86. When collateral relatives inherit; collateral relatives of equal degree 3go, Table of Contents. vii Page Section 87. Brothers and sisters and their descendants 386 88. Brothers and sisters of father and mother and their descendants and grandparents 389 89. Illegitimate children 399 90. Relatives of the half-blood 404 91. Relatives of husband or wife 408 92. Cases not hereinbefore provided for 410 93. Posthumous children and relatives 413 94. Inheritance, sole or in common 414 95. Alienism of ancestor 416 96. Advancements of real and personal estates 419 97. How advancement adjusted 427 98. Distribution of personal property of decedent 429 99. Advancements of personal estates 464 TOO. Estates of married women 472 loi. Liability of heirs and devises for debt of decedent.... 478 102. Liability of heir or devisee not affected where will makes specific provision for payment of debt 483 103. Action against husband for debts of deceased wife.... 486 104. Application of certain sections in this, article 48S Article 4. Executors, Administrators and Testamentary Trustees With notes and commentary on the text 490-S30 Section no. Sales of real estate by executors under authority of will 490 111. Investment of trust funds by executor or administrator. 493 112. Executors de son tort abolished 499 113. Special promise to answer for debt of testator or intestate 505 114. Liability of executors and administrators of executors and administrators 508 115. Rights of administrators de bonis non 510 116. Actions upon contract by and against executors 513 117. Administrators to have same rights and liabilities as executors 516 118. Actions of trespass by executors and administrators.. 518 119. Actions of trespass against executors and adminis- trators 521 120. Actions for wrongs, by or against executors or ad- ministrators 524 121. Action or proceeding by executor of executor 528 122. Appraisal of estate of deceased person 529 viii Table of Contents. Article 5. Laws Repealed; When to Take Effect. Page Section 130. Laws repealed 53 1 131. When to take effect 53i Schedule of laws repealed 53I-S32 APPENDIX No. L Notes of the Board of Statutory Consolidation on the consoli- dated " Decedent Estate Law " 534-539 APPENDIX No. II. Notes of the original revisers of the Revised Statutes, on the original text, now embodied in the '"Decedent Estate Law".. S4I-S57 APPENDIX No. III. Report of Commissioners of Statutory Revision on the original act now embodied in article 3 of the " Decedent Estate Law "- 559-565 General index 567 TABLE OF CASES. A. PAGE Abbiss V. Burney 164 Abel, Matter of 132, 133 Abercrombie, Matter of 120 Acker, Matter of 114 Ackerman, Matter of 257 Ackerman v. Emott 496 Adair v. Brimmer 496 Adair v. Lott 339 Adams v. Anderson 235 Adams v. Fassett 480 Adams v. Hillard 480 Adams v. Massey 363 Adams v. Smith... 345, 366, 368, 447 453, 457 Adams v. Winne 264, 276, 280 Adee v. Campbell 456,462 Adney v. Greatrex 178 Ahem v. Ahern , 189 Ahrens v. Jones 86 Akers, Matter of 257 Albert, Matter of 115 Alcock V. Smith 325 Alexander v. Alexander.467, 468, 469 Alexander v. Bennett 40 Alger, Matter of 255, 256,257 Allen, Matter of 175, 235, 363 Allen V. Callow 233 Allen V. Stevens 89, 90, 91, loi Allen V. Stevens 91 Ames V. Duryea 211 Amherst College v. Ritch...68, 86, 89, 90, 91 Amory v. Lord 149 Anderson v. Anderson. .26, 136, 305 Anderson v. Jackson 233 Andrews, Matter of 112 Andrews, Matter of 115, i34 [ PAGE Androvin v. Poilblanc 502 Arensberg, Matter of 234 Armstrong v. Galusha 456 Armstrong v. McKelvey .... 480, 482 Armstrong v. Moran 236, 346 Arnold, Matter of 530 Arnold v. Haronn.422, 423, 424, 426 467, 468 Arthur v. Arthur 251, 280 Asinari v. Bangs 258 Austin, Matter of 120 Austin V. Munro 506 Austin V. Sawyer 343 Avery v. Avery 481 Avery v. Everett 60, 81, 82, 179 ■ 341 B. Babcock v. Booth 503, 504 Backus, Matter of 251 Bacot v. Fessenden 178 Baer, Matter of 239 Bailey v. Bailey 139, 195, 188 Bain, Adm. v. Pine 512 Baird, Matter of 338 Baldwin, Matter of 126, 127 Ball, Matter of 496 Ball V. Smith 450 Ballou V. Ballou 344 Balmforth, Matter of.. 117, 123, 124 125, 126 Banks v. Walker 416 Barber v. Brundage 148,341. 375 378 Barnard v. Barnard 226 Barnes, Matter of 252 Barnes v. Crowe 286 ix] Table of Cases. PAGE Barnes v. Underwood. .372, 473, 474 476, 487 Barnet v. Man 4S0 Barnsdall v. Boley 339 Barnum v. Barnum 401 Barringer, Matter of 401 Barringer, Matter of 450 Barry, Matter of 397,436,462 Barry v. Brown 124 Barson v. Mulligan 343 Barstow v. Goodwin 284 Bascom v. Al'bertson 89, 90, 323 Baskin v. Baskin 119, 120, 125 Bassett v. Wells 197 Bate V. Graham 504 Bates V. Schraeder 357 Bates V. Virolet 402 Baylies v. Hamilton 199 Beardsley v. Hotchkiss.isi, 157, 191 Beaver, Matter of 100, loi, 102 Bebel, Matter of 46 Beck, Matter of 113, 115, 227 Beck V. Ennis 177 Beck V. McGillis. . . .273, 274, 276, 278 280, 284 Becker v. McCrea 343 Beckett, Matter of no, 120 124, 125, 126 Bedell v. Shaw 358 Beebe v. Estabrook. .. .421, 422, 425 426, 428, 465, 468, 469, 470 Beebe v. Griffing. .394, 396, 397, 405 407 Beekman v. Bonsor "JZ, 75, 82 Balding v. Leichardt 130 Bell V. Champlain 426, 428 Bender v. Terwilliger 339,450 Benevantano, Matter of 118 Benj amin v. Welde 200 Bennett v. Bennett 526 Bennett v. Earl of Tankerville. 271 Bennett v. Rosenthal 340 Berger v. Waldbaura 339,378 Bertles v. Nunan 338 Betts V. Betts 70, 94 PAGE Betts V. Jackson 248, 249 Bibb V. Thomas 254 Biggs V. Angus . . ; 251 Billings V. Baker 339 Bindrim v. Ullrich 189 Bingham, Matter of 485 Bird V. Pickford 188 Birkenshaw v. Gilbert 254 Bishop V. Bishop 233 Blackborough v. Davis 461 Blake v. Griswold 526 Blanchard v. Nestle 55 Bliven v. Seymour 199 Bloomer v. Bloomer 217, 220, 326 Blow, Matter of 504 Board of Missions v. Mechanics Savings Bank 89, 102 Bogardus v. Clark 40 BoUermann v. Blake 350 Bolles V. Bacon 239 Bolton, Matter of 39, 4Q, 79, 81 476, 487 Bond V. Smith 515, 526 Boon V. Castle 47 Boome v. Phillips 176 Booth, Matter of Will of 112 Booth v. Baptist Church 115, 195 Booth v. Timoney 206 Bosi V. Ray 152 Botsford V. Krake '87 Bowman v. Domestic & Foreign Miss. Society 89 Bowiron v. Kent. . .422, 423, 425, 426 467, 4& Brackett v. Griswold 526 Bradley v. Krudop 306, 307, 308 Bradner v. Faulkner 62 Bradwell v. Weeks 82 Bradwell v. Weeks 463 Brady v. Cubit 255 Brady v. Cubitt 262 Brady v. McCrossen 130' Brand, Matter of 114, 115, 116 Brandt, Matter of 21 1 Brant v. Wilson 48, 252, 286 Table of Cases. XI PAGE Brantingham v. Huff 361,363 Brett V. Rigden 233 Brewster, Matter of 287 Brick's Estate, Matter of .34, 37, 38 Brick V. Brick S6 Bridges v. Pierson 47 Brinkerhoff v. Remsen s, 53, 132 Brookman, Matter of 251,253 25s, 256 Brewer, Matter of 55 Brown, Matter of 227 Brown v. Brown.. 273, 276, 280, 284 Brown v. Burlingham..352, 388, 393 406, 411 Brown v. Chesterman 498 Brown v. Clark 47, 115, 134, 135 3651, 266, 267 Brown v. De Selding 130 Brown v. Lyon 179 Brown v. Richter 449 Brown v. Sackville 107 Bruce v. Griscom 422, 468 Brush V. Wilkins 262 Brush V. Wilkins 216 Buchanan v. Little I9S Buckley v. Buckley 34S, 3S0 Buckley v. Redmond 259 Buel, Matter of 124 Bulkley v. Bemond 259 Bumpus V. Bumpus 200 B-.mce, Matter of 218 Bunce v. Bunce 218 Bur V. Sherwood 448 Burke's Will, Matter of 132 Burke, Matter of 226 Burke v. Nolan 131 Burke v. Valentine 338 Burkle v. Luce 512, 527 Burnes v. Burnes 362 Eurnham v. Brennen 527 Burnham v. Burnham 4P2 Burnham v. Comfort. . .135, 281, 284 Burnham v. Comfort 423 Burns, Matter of 12a Burnsee, Matter of 124, 132, 133 PAGE Burritt v. Silliman 226 Burrow v. Baxter 263 Burtenshaw v. Gilbert 285 Burtis V. Doughty 199 Burton's Will, Matter of ;.. 267 Butler, Matter of 363 Butler V. Benson 118, 130 Byrnes v. Baer 66, 76, "jj Byrnes v. Stilwell. . .63, 148, 175, 200 Byxbie v. Wood 526 C. Cadell V. Palmer 163, 164, 177 Caldwell, Matter of 343 Callahan v. O'Brien 72, 332, 417 Camp V. Camp.... 423, 424, 426, 467 Campbell, Matter of... 134, 135, 286 287 Campbell, Matter of 251 Campbell v. Breun 37 Campbell v. Browne 504 Campbell v. Logan 252 Campbell v. Morgan 46 Campbell v. Rawdon . . . 143, 179, 241 Canal Commrs. v. The People . . 269 Canfiel'd v. Crandall... 135, 252, 449 453 Canfield v. Fallon 378 Canfield v. Ford 62 Carey, Matter of 133 Carey, Matter of.. 119, 121, 124, 125 Carey v. Askew 108 Carle v. Underbill 46 Carll, Matter of 134, 135 Carmichael v. Carmichael. . .147, 146 Carr v. Anderson 339 Carr v. Rischer 526 Carroll v. Collins 360 Carroll v. Norton 117 Cass V. Cass 191 Catt V. Catt 89 Caujolle V. Ferrie 402 Caulfield v. Sullivan 47, no, 134 323 Caw V. Robertson 146, 226 xu Table of Cases. PAGE Central Trust Co. v. Egleston. 189 196 Chace v. Lamphere 200 Chaffee v. Baptist Missionary Convention 118, 130 Chamberlain, Matter of 343 Chamberlain v. Chamberlain 70 90, 92, 93, 100, 32s Chamberlain v. Taylor. .. .92, 93, 94 344, 343 Champlin v. Baldwin 344,374 Champlin v. Champlin 199 Chapman, Matter of 345, 350 Chase v. Ewing 422, 426, 468 Chesterman v. Eyland 496 Children's Aid Society v. Love- ridge S6, 226 Chrystie v. Phyfe 197, I99 Churchill v. Prescott 326 City of Brooklyn v. Seaman i39 195 Clark, Matter of 387 Clark, Matter of 338 Clark V. Clark 495 Clark V. Cammann 449 Clark V. Fisher SS, iii Clark V. Kingsley 467 Clark V. Smith 256 Cleft V. Moses 481 Clements v. Babcock. .. .91, loi, 344 Cleveland, Matter of... 206, 207, 211 Clute, Matter of 117, 129 Coburn, Matter of 210,211 270, 322 Cochrane v. Schell 19S, 241 Coe, Matter of 55 Coffin v. Coffin 124, 130 Cohen, Matter of 114 Cole v. Gourlay 318 Cole V. Irvine 414 Cole v. Sevyell 150, 169 Colgan V. Dunne 482 Collender v. Dinsmore 200 Colwell V. Lavrrence 200 Collier v. Idley 37 PAGE Colligan, Estate of 251 Colligan v. McKernan 251 Collins, Matter of 195 Collins, Matter of 126' Collins V. Russell 3391 CoUyer, Matter of 528. Collyer v. Collyer 259 Colton V. Fox 196 Colton V. Ross 40 Congregational Unitarian Soc. v. Hale 325. Conboy v. Jennings 114 Conklin v. Egerton's Admr..6, 24. 26, 45 Conkling v. Brown 349, 378, 383. 406 Connolly v. Connolly 191 Connolly v. Pardon 200 Conover v. Hoffman 48- Conway, Matter of. ...112, 115, 134. 2Sr Cook, Matter of 361, 366 Cook, Matter of 361 Cook, Matter of SSQ' Cook, V. Lowry 193 Cook V. Munn 236 Cook V. White 115 Cooley, Matter of S30' Coolidge, Matter of 344, 449 Cooney, Matter of loi Coope, Matter of 207,307,308- Cooper, Matter of 117 Corley v. McElmeel. . . .26, 136, 208- 293, 304, 305, 306, 309, 318, 322, 334. Corse v. Chapman 189, 195 Cornelius, Matter of 100, loi Cornell, Matter of 113, 132, 133 Cornell v. Wooley 226- Cotheal v. Cotheal 216, 413. Cotter v. Layer 265, 271 Cottrell, Matter of Will of.. 132, i33 Couenhoven v. Shuler 196- Counrod, Matter of 94. Table of Cases. xiu Countryman v. Deck 64 Cox V. McBurney 343 Craig V. Leslie ^2 Cramer, Matter of 175, 177, 178 Cramsey v. Sterling 402 Crane, Matter of 90, 91 Crawford v. Nassoy 4S3 Cregin v. Brooklyn Crosstown Railroad Co 526 Cresson v. Stout 343 Cromer v. Pinckney 199 Croner v. Cowdrey 267 Cross V. Cross 402 Cross V. U. S. T. Co 206 Cross V. U. S. T. Co. et al 324 Grossman v. Crossmann. . .136, 25s 257, 258 Crooke v. County of Kings . . . 141 188, 192, 193, 194 Cruger, Matter of 207, 211 Cruger, Matter of 458 Cruger v. McLaury 65, 342 Cruger v. Phelps 211 Cruikshank v. Home for Friend- less yT, 17s, 23s, 363 Cunningham v. Parker 479 Cunnion, Matter of 251, 287 Curtice, Matter of 53° Curtis, Matter of.. 254, 255, 256, 2S7 Cushman v. Cushman 146, 189 Cushman v. Horton 196, 199 Cutting V. Cutting 193 D Dack V. Dack 117, 124, 132 Dake, Matter of no Dale, Matter of 126 Dale V. Roosevelt 511, 512 Daly V. Beer 72 Dammert v. Osborn. . .100, 116, 212 323, 324, 448 Dan V. Brown 243, 248, 254, 255 256 Dana v. Feedler 200 Dana v. Murray 140, 143, 149 PAGE Davenport, Matter of.. 387, 451, 457 458 Davenport, Matter of . .347, 350, 357 382, 392, 393, 442, 456, 462 Davenport, Matter of 397, 451 Davis, Matter of 3, 13s Davis, Matter of 252, 260, 280 Davis V. Davis 218,359,402 Dayton v. Brooklyn Heights Railroad Co 345 Dearing v. McKinnon Co.. 324, 325 326 Debevoise v. N. Y., L. E. & W. R. R. Co SIS DeCaumont v. Bogert 422 Decker, Matter of 496 DeCrano v. Moore 480 DeGroot, Matter of 254, 258, 259 DeHart, Matter of 114, ns, 124 I2S, 130 DeKay v. Irving 199 Delafield v. Parish 55,262 Delafield v. Parish 254, 260, 280 Delafield v. Schuchardt 496- Delaney, Matter of 196, 199 Delaney v. Van Aulen 200 Delano, Matter of 11 Delaplaine, Estate of 207, 208 Del Genovese, Matter of... 221, 264 401 Del Genovese, Matter of 264 Delprat, Matter of 125 De Meli v. De Meli aio, 323 Denham v. Cornell 344 Denike v. Harris 495 Denison v. Denison 149, 171, 189 Depeiriss, Matter of 236, 239 Devoe, Matter of 397, 449, 4S6 Deyo V. Morse 478, 479 Diez, Matter of.... 46, no, in, 136 Dill V. Wisner 481, 484, 485 Dingley v. Bon 293 Diefenthaler, Matter of.. 121, 124, 131 XIV Table of Cases. PAGE Dixon V. Cozine 26, 40, 136, 202 208, 304, 30s, 504 Doane v. Mercantile Trust Co.. 234 449 Dodd V. Anderson 503, 504, 516 Dodge, Matter of 3S8 Dodge V. Cornelius 204 Dodge V. Gallatin 76 Dodge V. Stevens 358 Dodge V. Stevens 482 Dodin V. Dodin 359 Doe V. Brabant. 234 Doe V. Doe 130, 200 Doe V. Roe 200 Doe ex dem., etc. v. Provoost.. 144 Dolph v. White 343 Donner, Matter of 113 Doppman v. MuUer 363 Dougherty v. Dougherty 469 Dougherty v. Thompson. . .143, 144 148, 149 Doughty V. Stillwell 453, 455, 4S6 462 Douglass, Matter of 134 Downey V. Seib 177 Downing v. Marshall. .67, 68, 70, 73 187, 234 Downs V. Blunt 40 Dox V. Backentose 500 Drischler v. Vander Henden. .. . 413 Driver v. Frank 144 DuBois v. Brown 225 DuBois V. Ray 143 Duke, Matter of 251 Duncan v. St. Luke's Hospital.. 527 Dunklee v. Butler 49s, 496 Dunning, Matter of 397,456 Dunning v. Dunning 484 Dunning v. The Ocean Nat. Bank 343, 344 Dunscomb v. Dunscomb 339 Dupuy v. Wurtz...ii6, 206, 210, 211 323, 324 Durand, Matter of 92, 93 Durando v. Durando 358 Dyer v. Dyer 424 E PAGE Ebbets, Matter of 449, 456 Ebeling v. Ebeling 422, 470 Edsall V. Waterbury 452 Edson V. Bartow 70 Edson V. Parsons 258 Effray v. Foundling Mylum 102 Eisner v. Koehler 423 Eldredge, Matter of gi EUery, Matter of 132 Ellis V. Smith 107 Ely V. Holton 361 Emanuel v. Ellis 406 Emanuel v. Ennis 394 Emerson v. Bovil 263 Emmons, Matter of ns, I34i I3S Engler, Matter of 119, 120, 131 Ensign, Matter of 453 Essig, Matter of 2152 Evans, Matter of 259 Evelyn v. Evelyn 461 Evelyn v. Evelyn 442 Everett v. Everett 186 Eysaman, Matter of 2127 F Faile, Matter of 344 Fairchild v. Edson. .90, 91, 100, I02 Fargo V. Squires 194 Farmers' Loan & Trust Co., Matter of 98, 136 Farmers' Loan & Trust Co. v. Kip 193, 194, 19s Farmers' Loan & Trust Co. v. Shaw 91 Fay V. Taylor 73, 74, 418 Fellows V. Longyor 496 Fenton v. Reed 402 Ferrie v. The Public Adminis- trator 401, 443, 447 Ferrin v. Myrick 505, 506 Ferris v. Gibson 169 Ferry v. Dunham.. 345, 373, 374, 394 395. 397 Fielding, Matter of 481 Fink V. Berg 481 Finley v. Bent 241 Table of Cases. XV PAGE Tirst Nat. Bank v. Mortimer. ; . 193 Pithian, Matter of 500 -Fitzgerald, Matter of no Fleming, Matter of 347, 456, 457 Fletcher v. Ashburner 344 Fletcher v. Severs 447,453,457 Floyd V. Carow 341 Foley, Matter of 100, 118, 133 Ford V. Cobb 342 -Forman v. Marsh 345 Forman's Will, Matter of the Probate of 80, 136 Fosdick V. Delafield igg Fowler v. Depau 144, 175, 184 Fowler v. IngersoU 375 Pox V. Fee 318 Franklin v. Low 514 Fraser v. United Presbyterian Church 345 Frazer v. Hoguet 91 Freligh v. Piatt 343 Prost, Matter of 136 Fults, Matter of no Purman v. Coe 509 G •Gall, Matter of 218, 231, 231, 264 Gall V. Gall 403 Gallavan v. Gallavan 235 Callup V. Wright 201 Gamber, Matter of 126 ■Gantert, Matter of 4&4, 491 "Gardiner v. Gardiner 56 Gardiner v. Raines 120 •Gardner v. Collins 394 Gardner v. Gardner SS ■Garner, Matter of 402 ■Garvey v. McDevitt 186 ■Garvey v. Union Trust Co. . .93, 94 1 01 Gates V. Gates 363 , 108, 208. 286, 304^ Hasbrouch v. Knoblauch 93; Hatch v. Bassett 452 Hatfield v. Sneden 338- Hauselt v. Patterson.. 479, 480, 481 482: Havens v. Havens 249, 269. Havens et ux. v. Van Den Burgh 248, 249, 262, 264, Haviland, Matter of iiO' Hawley v. James 151, 163. Hayden v. Sugden 75 Hays v. Hibbard 422, 424. Haywood v. McDonald 481, 48a Hazard v. Hazard 56- Healey, Matter of 387, 456, 457 Healy v. Healy ■^■i. Hearle v. Greenbank 81 Heeney v. Brooklyn Benevolent Society 417 Hegerich v. Ked Q Quiade v. Bertsch 189 Quinn, Estate of 423, 424 Quinn v. Hardenbrook 77 Quinn V. Quinn 256, 258 R Rackeman v. Taylor 309- Radley v. Kuhn . . 143, 148, 152, 153 156, IS7. 189, 191 Raisbeck, Matter of no, 256 Raley v. Ridehalgh 498 Ransom v. Nichols 474, 476 Rathbone v. Dyckman 177 Rawson, Matter of 402 Ray V. Walt«n 122 XXIV Table of Cases. PAGE Raymond, Matter of...Soo, 503, 504 Rayner v. Green 500 Read v. Patterson 478, 479 Read v. Williams 363 Redfield v. Redfield 13s Redmond, Matter of 236 Redpath v. Rich 416 Reed, Matter of 496, 497, 498 Reeve, Matter of 406,417 Reeve v. Crosby 226 Reid V. Vanderheyden zy Reiffeld, Matter of 2ko Remsen v. Brinkerhoff. .11, III, 124 Renner v. Muller 417 Renner v. Muller 417 Rex V. Millis 30 Reynolds v. Robinson 200,201 Rich V. Tiffany 91, 93, 94 Richards v. Gill 480 Richards v. Northwest Dutch Church 343 Richairdson, Matter of 504 Richardson, Matter of 500 Richmond v. People of Porto Rico 74 Rider v. Wager 271 Righter v. Ludwig 371, 374, 394 39S, 397, 406 Riker v. Cornwall 234 Riker v. Leo 70 Ritch, V. Hawxhurst. .197, 198, 200 426 Robb V. Washington and Jeffer- son College go Robert v. Corning 186 Roberts, Matter of 324 Roberts, Matter of 423 Roberts v. Bosworth 235 Roberts v. Marsen 527 Robins v. Coryell 118 Robins v. McCluer. . . .474, 476, 487 Robinson, Matter of 199 Roche V. Nason no Rochester, Matter of City of 199 48s PAGE Rockwell V. Geary 220, 231 Rockwell v. Geery 413 Rockwell V. Saunders.. 504, 519, 520 522 Rogers, Matter of 511 Rogers v. Casey 66 Rogers v. Patterson. ..478, 480, 481 Rogers v. Rogers. . .26, 40, 136, 305 306 Roome v. Phillips 273, 274 Roosevelt v. Porter 323 Roosevelt v. Roosevelt 496 Roosevelt v. Thurraan 199 Rossignot, Matter of. .217, 263, 264 413 Root v. Stuyvesant 108 Rose v. Ewer ,107, 108 Rothschild v. Schiff 63 Rounds, Matter of 91 Rousseau v. Rouss 402 Rubens, Matter of. 116, 207, 210, 211 Rudd V. Cornell 182 Rudd V. Cornell 239 Rugg V. Rugg 226 Runyan v. Mesereau, Jr 343 Ruppauer, Matter of 323, 448 Russell, Matter of 238 Russell V. Hairt 208, 303, 304 Russell V. Hilton 344 Russell V. Russell 491 Rutherford v. Aiken . . . 520, 523, 526 Rutherford v. Rutherford. .121, 125 Ryerss v. Wheeler 30O S Salisbury v. Slade 344 Sandford v. Sandford 425, 426 Sandford v. Sandford 424, 468 Sanf ord v. Sanf ord 220 Sarasohn, Matter of no, 124 Savage v. Burnham. .. .233, 235, 236 237, 238, 239 Sawyer v. Sawyer 498 Soattergood v. Edge 163 Schell v. Carpenter 64 Table of Cases. XXV PAGE Schermerhom v. Cotting i8S Schettler v. Smith 149 Schettler v. Smith 241 Schlegel, Matter of 112 Schlereth v. Schlereth 152 Schlosser, Matter of 462 Schmeig v. Kochersberger 198 Schmidt, Matter of 401,402 Schoonmaker v. Wolford 226 Schuck V. Shook 'J^ Schult V. Moll 388 Schultz V. Dambmann 323 Schultz V. Schultz 259 Schutz V. Morette 507 Schwarz v. Rehf uss 148, 149 Scott V. Brown 526 Scott V. Ives 90, 91 Scott V. Key 401 Seguine v. Seguine 228 Seiter v. Straub 58,79, 80 Selden v. Vermilya 187 Selover v. Coe 481 Seventeenth Ward Bank v. Web- ster 526 Sevirell V. Underbill 274, 284 Seymour v. Van Wyck 124 Sharpsteen v. Tillou 225 Shattuck, Matter of 100, 102 Shayne v. Evening Post Publish- ing Co S14. 526 Shearer, Estate of. 306, 307, 308, 314 Sheath v. York 262 Sheldon v. Button 449 Sheridan v. House 143, 147 Sherman v. Parish 496 Sherwood v. Judd 325 Sherwood v. Sherwood 199 Sherwood v. The American Bi- ble Society 69 Sherwood v. Wooster 466 Sherry v. Lozier 249 Shulters v. Johnson 200 Shultz V. Pulver 4-|8 Shumway v. Cooper 476, 487 PAGE Sill V. Worswick 324, 448 Simmons v. Burrell 361 Simmons v. Simmons. .248, 252, 287 288 Simonson v. Waller 324 Sipperly V. Baucus z"} Sisters of Charity v. Kelly. H2, 114 IIS, 117. 120, 131 Sizer, Matter of 117, 133 Smith, Matter of 450, 455 Smith, Matter of 530 Smith, Matter of Will of 56 Smith v. Allen 361 Smith V. Alien 449 Smith V. Balcom 424 Smith V. Chesebrough.307, 326, 350 Smith V. Dorr's Admr 401 Smith V. Havens Relief Fund Soc 90, loi Smith V. Kearney 470 Smith V. Lansing 359, 368, 401 Smith V. Milles 503 Smith V. N. Y. & N. H. R. R. Co 520, 525 Smith V. Reilly 73, 416 Smith V. Robertson 413 Smith V. Robertson. . .216, 217, 220 221, 231 Smith V. Smith 72, Ti, 416 Smith V. Wait 253 Snedicor v. Congdon 139, 195 Snell, Matter of no Snider v. Croy 519 Snider v. Snider 178 Southworth, Matter of. 447, 451, 453 455, 457 Spencer v. Weber 49s Spindler v. Gibson 338 Spink, Matter of 403 Spratt v. Syms 303, 304, 309 Stachelberg v. Stachelberg. .219, 413 Stafford, Matter of 497 Stagg v. Jackson 344 Stall v. Wilbur 343 XXVI Table of Cases. PAGE Stamm v. Bostwick 72, 232, 373 Stanley v. Leigh 163 Stanley v. Stanley 441 Starbuck, Matter of 339 Stark, Matter of 496 Steele v. Leopold 497, 498 Stein V. Wilzinski 131 Stephenson v. Short 68, loi, 102 Sterling v. Sterling , 47 Stevens, Matter of 498 Stevenson v. Leslie 191 Stevenson v. Martin 469 Stewart v. Russell 417 Stevi^art's Exr. v. Lispenard. .53, SS Stewart's Will, Matter of.. 127, 130 131 Stickney, Matter of... 251, 254, 260 287, 288 Stilson, Matter of 91 Stil'well V. Swarthout 481 Stimson v. Vroman 200 St. John V. Andrews Institute.. 91 St. John V. Andrews Institute. . 90 89, 91, 92, 32s St. John V. North'rup..402, 403, 417 St. Luke's Home v. As's'n for Indigent Females 200 Stokes V. Hyde 182 Stokes V. Stickney 526,527 Stokes V. Weston 239, 241 Stoltz V. Doehring 401 Stone, Matter of 90 Strang, Matter of 92, 93 Stringer v. Barker 64, 146 Stringer v. Young 188 Strong V. Wilkin 81 Strutzkober, Matter of 487 Suarez v. Mayor, etc., of New York 323, 326, 448 Suckley, Matter of 456,462 Sullivan v. Dunham 514 Sullivan v. Sullivan 263 Sweet V. Sweet 254 Sweezey v. Willis. 383, 440, 459, 461 T PAGE Talmage, Matter of 94 Tarrant v. Ware 130 Tatum, Matter of 344 Tavshanjian v. Abbott. 218, 219, 413 TayJor, Matter of 55 Taylor v. Broiadhead 120 Taylor v. Klein 475 Taylor v. Millard 293 Taylor v. Syme 303 Tebbott V. Voules 272 Teed, Matter of 93 Temple v. Hawley 152 Terry v. Dayton.. 347, 350, 421, 422 424, 428, 466, 467, 468, 469, 471 Thayer, Matter of S3» Theobold v. Smith 361 Thieler v. Rayner 191 Thomas, Matter of 473, 476, 487 Thomas v. Cameron 500 Thomas v. Cameron ... 503, 504, 516 Thomas v. N. Y. Life Ins. Co. 499. Thompson, Matter of 252 Thompson, Matter of 485 Thompson, Matter of 392 Thompson, Matter of 347, 393 Thompson v. Carmichael. . .422, 423 424, 467, 46S Thompson v. Stevens 124 Thome, Matter of 360,361 Tienken, Matter of 239 Tiers v. Tiers 139, 149 Tiflft, Matter of 5S Tighe, Matter of log, no Tilden v. Green 196 Tililotson V. Race 201 Tilton V. Vail 378 Toher v. Crounse 77, 413 Tompkins, Matter of 135 Tompkins v. Jencken 322 Tonele, John, Matter of Will of 113, IIS, 116, 228 Tonnele v. Hail 112 Torrey v. Shaw. .352, 370, 371, 372 374- Townsend v. Van Buskirk 4or Table of Cases. xxvii PAGE Tracey v. Frey 402 Trand v. Magues 481 Traver, Matter of 344 Trimble v. DziedugyikS 206 Trimm, Matter of 362 Trimm v. Marsh 343 Trost, Matter of 260 Trowbridge v. Metcalf 344 Trumble, Matter of 196 Trustees of Auburn Seminary V. Calhoun 123., 132 Tucker v. Tucker 378 Tucker v. Field 206,210, 323 Tully V. Tully 402 Turell, Matter of 120 Turfler, Matter of 422 Turner v. Mather 480, 485 Turrel, Matter of no, 125 Tuthill V. Davis 179, 185 Tuttle V. Tuttle 236, 237 Tyler v. Gardiner 56 U Udell V. Stevens 219, 413 Underbill v. Vandervoort 200 Union Bank v. Mott 526 Union Nat. Bank v. Chapman.. 325 United States v. Rodiek 74 U. S. Trust Co. V. Maxwell 401 Upington V. Corrigan 63, 64 V Vail V. Vail 424,42s Vail V. Vail ^o Valentine v. Hutchinson 338, 339 Valentine v. WetheriH. .345, 352, 353 354, 3SS, 374, 388, 394, 39S, 397, 4oS 406 Vallance v. Bush 60, 81, 473, 476 487 Van Alst v. Hunl!er..26, 40, S5, 136 304 Van Beuren v. Dash. . . .233, 235, 237 382 PAGE Van Cortlandt v. Kip 134, 286 Van Courtland v. Nevert Ti Vandemark v. Vandemark. .274, 275 280, 284 Vanderheyden v. 'Crandall. . .64, 342 Vanderpool v. Van Valkenburgh 321 Vanderzee v. Slingerland. . . 177, 179 184 Van Home v. Campbell. .. .182, 185 Van Home v. Fonda S03 Van Nostrand v. Moore 199 Van Rensselaer v. Hays 65 Van Rensselaer v. Boucher 358 Van Rensselaer v. Read 342 Van Slooten v. Dodge 507 Van Tassel v. Burger 344 Van Vechten v. Pearson. .. .144, 169 Van Wert v. Benedict 252 Van Wyck v. Brasher SS Vaughan v. Burf ord 127 Vedder, v. Evertson 169, 184 Vedder, Matter of 344 Vermilya v. Beatty 504 Vernon- v. Vernon 237 Venplanck v. De Went 423, 470 Viele V. Keeler 252 Vogel V. Lebritter 115 Von Beck v. Thomson 361, 362 Voorhis, Matter of 114, 119, 124 Vroom V. Van Home 448 W Wade V. Holbrook 56, 200 Wade V. Kalbfieisch SIS Wadhams v. American Home Miss. Soc S2, S9, 81, 475 Wadsworth, Matter of 406 Wadsworth v. Murray. , 197 Wadsworth v. Murray 14S Wadsworth v. Wadsworth. . .72, 73 Wainwrigbt v. Low 75, 82 WaldheJm v. Hancock Mut. Life Ins. Co. 477 XXVUl Table of Cases. PAGE Walker, Matter of 133 Walker, Matter of Will of. .92, 94 Walker v. Steers. .273, 274, 281, 284 Walker v. Taylor 189 Wallace v. Payne 40, 305 Walton V. Walton 422, 423 Walton V. Walton. .263, 271, 272, 278 282, 284 Walton V. Walton- S09 Ward, Matter of 362 Ward V. Laut 47o Waird v. Standard 234 Ware v. Wisner 211 Waring v. Waring 481 Warner, Matter of 477 Warren v. Leland 343 Wairren v. Union Bank of Roch- ester 496 Wasbourne v. Downes 163 Washburn v. Cope 17s Watemiian v. Whitney. .247, 248, 252 256 Waters v. Stewart 343 Watkins v. Eaton 324 Watts V. Crook 441 Watts V. Public Adnir...S3, 106, 108 Waukford v. Waukford 504,516 Wear, Matter of 252 Wear, Matter of 251 Weatherhead, Lessee v. Basker- ville 109 Webb V. Sweet 345 Webber's Exrs. v. UnderhilL . . 527 Weinstein, Matter of.. 241, 344, 345 Weintraub v. Siegel 345 Weir 'V. Fitzgerald 55 Wells, Matter of. 199, 200, 232, 235 239 Wells V. Betts 338 Wells V. Seeley. ..326, 345, 374, 393 394. 395 Wells V. Squires 195 Wells V. Wells 191 Wendell v. Crandall 342 PAGE Westchester T. Co. v. Hobby Bottling Co 338 Wetmore v. Parker 69, 135, 199 Wheeler v. Clutterbuck. .. .345, 349, 374, 378, 379. 383, 395, 396, 397, 406 White V. Howard. .117, 206, 304, 307 326, 344, 350 Whitefield v. Crissman 189 Whitehead v. New York Life Ins. Co 477 Whitney, Matter of. ...no, 112, 115 Whitney, Matter of no Whitting, Matter of 234 Wickham v. Roberts 514, 526 Wiggins V. Howard 496 Wilcox, Matter of.. 149, 150, 151, 156 157, 162, 166, 167, 180 Wilde, Matter of 124 Wilkes V. Harper 480 Wilkes V. Lion 184 William, Matter of 251 Williams, Matter of 126 Williams v. Fitch 86 Williams v. Goodtitle 286 Williams v. Jones 179, 182 Williams v. Petit 179 Williams v. Teale 140 Willis V. Mott 120, 131 Willis V. Sharp 506 Willon V. Berkeley 152 Wilson, Matter of Will of 226 Wilson V. Van Epps 293 Wilson V. Wilson 19& Wilson V. Wilson 286 Winne v. Winne 363 Winnington, Estate of 314 Wissel V. Ott 401 Wohlgemuth, Matter of 40,207 Wolfe V. Van Nostrand 170, 200 Wolfe's Estate, In re 497 Woodbridge v. Bockes 498 Woodgate v. Fleet 141 Woodruff V. Coke 139, 140 Woodruff V. Wickworth 461 Woods V. Broder 358 Table of Cases. XXIX PAGE Woodwortb, Matter of 345 Wooky V. Wooley 119, 132, 133 Woolley, Matter of 234 Woolsey, Matter of 130 Worden v. Van Giesen. . . .118, 133 Wormser v. Croce. .216, 217, 219, 413 Wotton, Matter of. .. .495, 496, 497 Wright V. Mercein 206, 324 Wright V. Miller 185 Wright V. Sadler 71, 72 Wright V. Wright 148 Wylie V. Lockwood igp PAGE Wyndham v. Chetwynd 10 Wyrell v. Hall 502 Y Young V. Brush 293 Younger v. Dufifie. . .46, 114, 117, 2i0' 303, 304- Youngs V. Youngs 76,235 Z Zabriskie v. Smith 514, 518, 519 Zimmerman, Matter of 91 Zimmerman V. Schoenfeldt.. .58, 79 INTRODUCTION. The " Decedent Estate Law," chap. 13 of the Consolidated Laws of 1909 (enacted by chap. 18, Laws of 1909), is an important part of the sta'tutory law of the State of New York. This act now regulates last wills and testaments, the descent O'f real property, the distribution of the personal property of decedents, advancememts, executors' sales under powers contained in wills, their investaients and much concerning their rights and liabihties. The Statute of Descents was formerly contained in the Real Prop- erty Law of 1896 ; the Statute of Distributions wasi in the Code of Civil Procedure. The law regulating the execution of wills and testaments was a part of the Revised Statutes. It is certainly a convenience to have these scattered acts, all relating to a succes- sion to property of ^persons deceased, in one chapter of the statu- tory law, although the inclusion of the article on descenit of real property has no relation, historically or constitutionally, to the probate courts. All the other articles oif the statute are concerned with the jurisdiction of surrogates, and might very properly be included in a separate oode of surrogates' law. Over real prop- erty ecclesiastical courts and their successors, the surrogates, ihave a limited jurisdiction, the common law courts having for ages moniopolized the law relating to lands. By con'stitutional limitation surrogates are now prevented from dealing .with legal titles to land. Laws relating to succession to property at death. The sub- ject of succession to property by reason of the death of its owner, regarded in its legal aspects, is one of the most important in the particular jurisprudence of any country. Several times in each century the title to all the property in a state devolves, by reason of death, on legal successors in some form. Laws regulating and administering this succession are of profound importance, legally, to thoise in succession; economically, to the state and to creditors having an interest in the property involved in the succession. Such laws 'in this country are still curiously blended with both the laws and the customs of the old world. 2 The Decedent Estate Law. The legal conception of a will or testamenitary disposition of property to take effect at death of donor is largely due to the Roman law. That historical jurists and writers on comparative jurisprudence concede this debt at every stage is a fact so well and so often established that particular citations of autihority are superfluous.'- Power of testamentation. It is well known, that in all primi- tive s'ocieties the owner's right to declare who shall succeed to his property at his death is either nonexistent or else a: very vague one.* In Roman law the rules of inheritance are intimately connected witH the primitive laws regulating the paternal pqwer and the fam- ily organization which were then paramount. Formal adoption of heirs preceded the Roman conception of a will, which was at first only a device to appoint a person who should act as heir.^ It is for this historical reason that the Roman law always conceives of a will as an appointment or institution of an heir, or one who will succeed to the " universitas juris" or legal clothing of the deceased. Other testamentary dispositions by Roman law were made by codicil which bears a different sense from the same term in English Law.* The Roman' law knew no such phrase as a " last will and testament." The instrument of a last will in Roman law was a " testament." Any other instrument became a declaration of a last will, " ultima voluntas," only when it lacked the formali- ties of a testament. A last will and> a testament could not be the same instrument. While it is certain that the English law concerning wills and tes- taments is filtrated Roman Law, or Roman in origin, yet the points of departure are now numerous, characteristic, and important: (i) A Roman testator, unless a soldier, could not die partly testate and partly intestate, as the will must stand or fall as a whole. (2) There is no one in English law to whom the "universitas juris" (i. e., the rights and liabilities of the testator) descends as a whole. 1 See below, p. s, Introduction. chap. 2 ; Morey's Outlines of Rom. 2 Maine, Ancient Law, chap. VI ; Law, pp. 33-37 ; Hunter, Rom. Law, Ency. Brit. (9th ed.), tit. "Will"; 764. Amos, Rom. Civ. Law, 319. * Modern Rom. Law (Tomkins ' Mackeldey, Rom. Law, tit. IV, & Jencken), 219. Introduction. 3 The heir in England is not the heres of the Roman law, nor is the executor or administrator the Roman hercs. (3) The disabilities of testators are somewhat different in Roman and in English law. (4) The whole property can not be disposed of in Roman law, but it may be by the modern English law of wills. At one time in England this was not true, and " legitim " ^ struggled for recog- nition but failed to establish itself in England. (5) In England the requirements for execution of wills came to differ much from those required for Roman wills. (6) The differences between wills of real" property and wills of personalty, so familiar in Eng- lish law, are unknown to Rom^an law. (7) The Roman will speaks from the time of making, and the English will from the time of testator's death. (8) The Roman law knew no difference be- tween courts for the construction oi wills and courts of probate. There are other departures from the Roiman model which may be aUuded .to hereafter. In fallowing the history of the English law oi wills we may sometimes detect the epochs when the deviations from the Roman model begin. Thus the old Roman restrictions on testator's right to dispose of his property when he had wife and children — the "legitim" of the civilians and the continent — was finally swept away in all England only in the reign of George I." In Glanvill's- day the English heir was liable for his ancestor's warranty, irre- spective of assets, just as the Roman heir was liable for the debts of his predecessor, until Justinian limited the liability to assets actually received.^ In England the liabilities of the Roman heres, in course of time, tend to devdlve on the English executor, rather- than on the Englisli heir. By the rules of the old Roman or civil law, there could be no win without the designation of an heir. We detect the influence of this rule in the attempt of the ecclesiastical courts in England to hold that there could be no will without the appointment of an executor.* This conception endured longer in the case of wills of personalty than in the instance of wills of realty. The English 5 See " legitim " defined below. Godolphin, pt. i, chap, i, § 2 ; 6 See below. Introduction, p. 24. Plowd. 185. See a recrudescence of 'Holmes, Com. Law, 347. this idea in 1904, Matter of Davis,, 8 Swinburne, pt. I, § 3, pi. ig ; 4S Misc. 554. 4 The Decedent Estate Law. ecclesiastical lawgiver first attempted to differentiate a codicil from a will, upon the Roman principle, that a codicil was an- informal or unsolemn will. But neither of these attempts to so graft the civil law was uititnately suqressful in modern English Ecclesiastical law,'' and suich departures from the Roman rule are very influential on the modem probate -law of England and America. Anglo-American Jurisprudence. In the states of America, the migration of whtole coFonies of Englishmen who were subject, fig- uratively speaking, to a ready-made body of laiw in force in the fatherland, necessarily makes oar jurisprudence very complex, in- deed, more so than European jurisprudence. The old law serves in this country as an ultimate corpus juris, that is, as a body of law not only common to all the inhabitants, but highly regula- tive in the absence of statutes of the new commonwealth. In the Province of New York on and after ite cession to England in 1664 all the suitable laws of England were by prerogative ordi- nances and by direct authority of the Crown expressly made the common few of New York. Blackstone's account of the trans- plantation of English law to colonies by the colonists themselves is purely figurative and not always in accordance with the facts. TIhe body of English law thus transplanted to New York has since been very much modified to meet the exigencies and the requirements of our political society. Consequently at times, in order to comprehend the extent and the limitations of a legal doc- trine in New York, a wide view is necessary for thte lawyer, or he may miss even its present application. The origin of a law or institution and its development are often- necessary to its proper construction. There is, however, a difference between the 'his- tory which is the result of mere antiquarian curiosity and the legal history which' seeks to trace the development of a living prin- ciple of law. The former should generally be avoi-ded as extra- neous to a law book, wihile the latter should be pursued as much as possible in its utilitarian aspect which is only to illustrate and expound. The things of the present are infinitely more important to us than the things of the past. But if the things of the past give vitality to the things of the present then we must turn to the past. 9 Williams on Executors (2d ed., 1838) , 7. 8. Introduction. 5 In the last forty years historical jurists have made much more profound investigations than formerly into the origins of common law institutions. Many obscure or debatable points have been cleared up; but in the process much accepted legal history has been utterly demolished. Much needed work of investigation, ana- lytic aridr synthetic/ remains to be done before the true genesis of many legal institutions and the vital living principles of English law shall be ready for a new expression in some comprehensive code. Venia Testandi. In New York our . present law of devises and testamentary succession is derived wholly from English law, although it now exists on an independent sovereign and statutory baais.^" So it is with our law regarding executors, intestate suc- cession, distribution, and in short wijth all the subjects now dealt with in the following section's of the " Decedent Estate Law." Venia testandi, or the privilege of men in political society to make a will and pass: on their property to others -when death intervenes, is a very ancient privilege or right in English law, and one thus far jealously preserved in this country. It, in short, has come to be an incident in our "conception of property" rather than a privi- lege, so thorougUy is it grounded. If is generally stated by pro- found scholars, that venia testandi, or the ppwer to make wills among Germ:anic races, including the English", is due to Rome^^ and the influence of its disciples. The Roman law made a distinction b'etween a " will " and a " tes- tament." A testament was a formal embodiiment of the last will, " ultima voluntas." This distinction was familiar to the ecclesias- tical lawyers of England. FuTnivalf s " Fifty Earliest Enghslh Wills," pubHshed in 1882, shows this fact. " Testamentum " is there invariably employed by testators; "ultima voluntas" never. The common expression in these wills is " Condo testamentum meum in hunc modum." Whether this distinction ultimately gave' rise to the existing distinction between a will and a testament in lOThe Public Admr. v. Watts, i Will," 11 Harv. Law Rev. 69-79; Paige, 347; Brinkerhoff v. Remsen, Bradford's Introduction, i N. Y. 8 Paige, 488. Surrogate's Reports, XIII (a most "Maine, Ancient Law, chap. 6; valuable paper). Bigelow, " Rise of the English 6 The Decedent Estate Law. English law is, however, uncertain. The differences are too marked to conclude that it originated it. There is, however, by the old law of England. a great distinction between a "will" or "devise" and a " testament." The former refers to real property and the latter to personalty." The real legal- distinction in English law between a wi'II or devise and a testament is not a matter of words, but largely one of origin.^^ The Anglican laws relating to disposi- tions of lands and tenements to take effect only on death of the ow«er, and the laws regulating like dispositions of personalty took very diffi'Cult paths in their journeys down the Middle Ages. A brief and general survey of these two paths, which tend to con'- verge in time, will materially aid us in the construction of even the very modern statute which is the subject Oi this treatise. Let us tlien glance backward for a litffle while to the history of devises in English law ; premising the present state of historical knowledge of the earlier periods still leaves much to be desired, altihough of late years modern investigators have cleared up many doubts. There are still but two comprehensive histories of English law: that of Reeves, written beforiC 1787 ; and the admirable summary by Holdsworth, which is very recent, but fragmientary and in- compilete. Pollock and Maitland in their history of English law deal only with the origins of English law and they end their survey with the year 1272 (i Edw. I). Brief History of English Devises or Wills. Some distin- guished lajw writers, such as Hargrave in his Notes to Q)ke on Lit- tleton," and Chancellor Kent in his Commentaries,'^^ assume or repeat that lands were generally de.visable among the Anglo-Saxons and the Danes in England prior to the Conquest. It is possible that this assumption may be warranted by the fact, for either lihe Roman settlements,^" or the introduction of Cbrisitianity and the subsequent influence of the Roman law, certainly led to some lowest, Symboleography (ed. "Note 138, Co. on Litt. 1116. 1594), § 632; Parson on Wills, i; ^^4 Comra. 503. 1 Powell on Devises, 9; 4 Kent. i^ Hargrave, note 138, Co. on Litt. ; Coram. 502; Wood's Inst., tit. De- Bradford's Introduc, I Surrogate's vises ; Conklin v. Egerton's Admr., Rep. 21 Wend. 430, 436. "Co. on Litt. ma; Williams on Executors (Lond. ed. 1838), 6. Introduction. 7 recognition by the Anglo-Saxons of wills in some form.^' The Roman church, imbued with the civil law, always favored wills greatly.^* But precisely to wrhat extent wills were in use in England prior to the reign of the first William, called the Conqueror, is a much more profound question than the legal historians of the eigh- teenth and the early nineteenth centuries imagined. There are very few so-called Saxon wills extant, and these are susceptible of a double construction, as post obit gifts by privileged persons.^" If we assume that lands in England were devisable prior to the Con- quest, it still remains a question how far " family lands " could be thus disposed of without the consent of the family.^" When com- munal lands became private lands or lands owned by individuals ■the power to dispose of them doubtless embraced testamentary dis- positions in some form. But this is about the extent of the histori- cal knowledge of the Anglo'-Saxon -law of wills Ujp to the present. That the Germans before they came into close contact with the Roman power had no clear conceptiom of testamentary dispositions is one of the accepted truisms o'f history.^^ With the Anglo-Saxon period of English history comes that por- tion of the law of England which is roughly described as " mediaevai law." The more thorough historical scholarship of recent times has made it apparent, even to lawyers, that the oommoni-law writers after the days of Henry VIII and down to and including Black- stone were much too dogmatic on controverted questions of legal history even when they possessed the requisite training and the his- torical sense to deal at all with such questions. The history of early English law is yet in great part to be written. The scientific historians have not been jurists, and the English lawyers have rarely been very profound historians. Even the acien- 1'' See Scrutton, Roman Law and 109 ; Scrutton, Roman Law and the Law of England, 93, 166; Bige- Law of England, 24; i Hist, of low, History of Procedure, 51; English Law (P. & M.), 318, 324; Anglo-Saxon Land Law, 107; Mait- White, Outlines of Legal History, land, Const. History, 30; The Pub- 191; Reliquiae Spelmannianae, 127. lie Admr. v. Watts, i Paige, 347, 20 PoUock, "The Land Law," 26; 369- Anglo-Saxon Land Law, 107. " See Stubbs' Lectures " Com- 21 Bigelow, Rise of the English raon Law" passim. Will; 11 Harv. Law Rev. 69-79. ^' Anglo-Saxon Land Law, 107- 8 The Decedent Estate Law. tific historians, in the absence of documents, find it often necessary to resort to inferences from known institutions of later date. They then reason " from the known to the unknown." Such a process must be very accurate to inspire confidence, and as a correct infer- ence of this kind must exclude every other hypothesis, the learn- ing necessarily involved in the process has been possessed by very few legal historians.-^ Judged by critical canons, it cannot be stated that the evidences of the early laiws of the Anglo-Saxons concern- ing wills or devises is as yet entirely satisfactory. That to^ some extent and in some way some persons in England, prior to the Conquest, could dispose of some part of their lands by an instru- ment in the nature of a will, is about all that the evidences p.rove up to the present.-^ In other words, the Saxon law of status (which is the principal law of primitive peoples) undoubtedly al- lowed some men in England to make some disposition, to take effect at their death, of that part of their lands which they enjoyed as property in their lifetime. That such a disiposition was in effect a will must, we think, now be conceded,^* although definitions of a will differ.^^ It has always seemed to this writer that the best evidence that lands were generally devisable under the Saxons is to be found in the surviving local customs, such as those of Kent, to devise land. These certainly point to an origin of great an- tiquity.^" That mere copyholders, or those tenants oi manors where the tenure was by a copy of court roll at the will of the lord, oould not devise by custom," is to be deduced from Coke's omission to mention any customs to surrender to the usie of devisees in his 22 The individual theories of the 25C/. 2 Hist. Eng. Law (P. & M.), origin of the free village commun- 312-3124; Maine, Ancient Law, chap, ity, the mark, or manor, are all open VI ; Jenks, Law and Politics in Mid- to the objection that they do not die Ages, 234. exclude all other hypotheses. For 26 Sandy's History of Gavelkind, this reason scholars do not yet re- 281 ; 2 Black. Comm. 84. ceive the theories as established. 27 Copyholds could be surrendered 23 Stubbs, Const. Hist. HI, 345. to trustees to hold to the uses de- 2* White, Outlines of Legal Hist, vised by will and this was common 191 ; Bradford's Introduc, i Surro- practice before the statute, 55 Geo. gate's Reports; P. & M. H, 26, 115, HI, chap. 192, dispensed with this 312; Holdsworth, H. E. Law. circuity. Introduction. 9 " Compleat Copyholder," ^^ althaugh perhaps the truest statement in that very dull book, so unwortlijr of such a distinguighed lawyer, is, " I perceive myself rashly running into an inextricable laby- rinth. I will therefore sail no longer in these unknown coasts." ^^ As a book of existing law for copyholders Coke's bojjk is doubtless adequate, for Coke was eminently a practical lawyer; but bis at- tempt at historical explanations is admittfed to be sometimes very inadequate. There are evidences that to some extent lands were devisiable in England before the Conquest, and they continued de- visable to some extent after the Conquest. The facts are conceded by historical jurists from Spelman^" on to the present day.' . 31 Lands Generally Devisable in England Before the Statute of Wills. It is commonly stated by legal historians that after the Conquest and prior to the Statute of Wills (32 Hen. VIII) lands ceased to be devisable in England. This, the Statute de Donis (13 Edw. i) confirms. Yet there is some reason to doubt the complete accuracy of this statement. That it contains an element 28 Compleat Copyholder, 6. however prepared him to write his 29 Until Holdsworth wrote much valuable work on the jurisdiction of of the Anglo-Saxon Law remained the Court of Chancery. That the to be summed up by a competent mediaeval law of England has gained scholar. This is also true of the much of late years from more scien- history of status and jurisdiction. tific treatment is fortunately more Professor Vinogradoff has lately and more evident, but that much re- explored a part of this subject. The mains to be done is only too appar- condition of the history of the Ro- ent. When a jurist who has a suffi- man settlements in England still ciently wide erudition to write the leaves much to be desired. Had history of the laws of England down Savigny, for example, included this to the end of the Middle Ages last topic in his theme, Geschichte at last appears, his place among des Romischen Rechts im Miltelal- legal historians will not be second ter, how different the result would to Savigny or any other great now be. The distinguished historian writer. of Equity, Spence, in an early work ^^ Reliquiae Spelmannianae (ed. on the origin of the laws of modern 1698), 128. Europe, evidently had it in mind, but ^^ Holdsworth, Hist. English Law ; in his survey he confined himself too Bigeiow, Rise of the English Will, largely to the Continent. This study ibid, supra. lo The Decedent Estate Law. of truth is probable as an entail precludes any disposition, testa- mentary or otherwise, but that it is wholly true is not made out by the historians. Any statement so generally accepted by the com- mon lawyers, while it may not be accurate in fact, is, however, always important as a datum, because on it the courts often predi- cate their decisions,^^ and even the legislature may accept it as a starting point or cause for new legislation. The distinction between a false histoTical statement accepted and acted on by law-men as a fact and a true historical statement, not acted on at all, is often lost sight of by the more scientific historical jurists, who' insist too much on the historical continuity of law, and they are often too critical" of the purely legal historians of the seventeenth and eigh-- teenth centuries, who were dealing with very different pnablems. Even Freeman and Bishop Stubbs are quite oblivious at times of the ends aimed at by the old legal historians. But to resume our discussion. It is doubtless true that at some time before the Statute of Wills — precisely w.hen is not estab- lished — certain fiefs or feudal estates in England were not recog- nized as devisable by the Curia Regis and the subsequent King's Courts which grew out of it and had jurisdiction at first of the Anglican law of fiefs or feuds and afterward of lands. It will be remembered that under the Normans and Angevins the King of England came to be in England, as the Duke of Normandy was in Normandy, the greart feudal superior, and his conception of Eng- land was a greater Normandy.''^ There were no doubt some regula- tions, probably more or less restricted in operation, but of a feudal •character, which ultimately led to the expression in the so-called com- mon or feudal law of land, " that lands were not devisable at common law." The comnioo law is in this sense the law recog- nized in the common-law courts which are only a later phase of the earlier King's or feudal courts. But that lands as lands in England ever ceased to be devisable by the law of England — Lex Angliae — after they became inheritable and vendible in that law, is not made out, we think, by the legal historians of either the old 32 See Lord Mansfield in Wynd- there were 1115 castles in England ham V. Chetwynd, Black. Rep. 95; belonging to the Normans and sub- I Burr. 414. ject to the feudal law (i Taine Eng. 23 At King Stephen's death in 1135 Literature, 115). Introduction. ii or the new school, and there is good reason to believe that such a proposition can not be made out. Importance of the Right to Devise. It is lately the fashion of modern political economists to assume that property is trans- missible to heirs or devisees on the death oif the owner, not as a matter of natural right, but juris positivi. This grave and preg- nant assertion is doubtless destined at no distant day to figure largely in the programme of tlie politicians. But we should observe that the owner's right of testamentary disposition' of property as a natural right, incidental to the property itself, was asserted with great force in the New York Court of Errors some seventy years ago.^* As this right of testamentation may be somewhat obsctired by the assertion that lands were devisable only by force of the Statute of Wills; the antiquity of the right in tlie old law — Lex Angliae — which became the fundamental laiw of this great State, is important. Let us examine, then, in some detail the rise of the theory that at common law lands were not devisable. It will be remembered that the medijeval law regulating the greater fiefs and their more distinguished owners ultimaitely became what is now called the " coimmon law of land." The contemporary law, regu- lating people in the humbler walks of life, very gradually either faded away into " custom " or else was conformed to the lav^r of the higher classes. Thus primogeniture, which was a rule of succession at first confined to the greater fiefs, ultimately triumphed as a universal rule of descent at coimmon law. That the triumph of primogeniture and the Statute de Donis are in some way connected with the disappearance of a power to devise in the King's courts having jurisdiction of such fiefs, is a plausible and indeed a probable con- jecture. When the eldest son must succeed to the land and the seigniory of the father there is no room for the executor. The disability to dispose of certain fiefs by will was doubtless on ac- count of the personal jurisdiction involved in a seigniory rather than because lands were not devisable. The rule of law in respect of power to devise, if formulated accurately, would then appear to be, that tenants in cnpite and other principal tenants of fiefs could 3* Remsen v. Brinkerhoff, 26 Wend. cient Law, chap. VI, and Matter of 32s, 333, seg. But see Maine, An- Delano, 176 N. Y. 486, 491. 12 The Decedent Estate Law. not devise their fiefs so as to contravene a succession by the eldest male next in blood. But this feudal rule had no relation to other tenants of land, such as those within the manors, or to holders of domiciliary land within the towns. We must, however, recognize that it is cotnmomly stated by the leading modern commentators on the common law that land in tenure ceased to be devisable in England after the Conquest and remained sio until the Statute of Wills.^' Coke and Bacon cer- tainly so state.^^ Yet there is reason to believe that this very gen- eral statement, covering centuries of time, is only partly accurate. It is impoSiSible to point out the law taking away the power of de- vising lands or the exact time when land as land ceased to be devis- able in England. A much more profound study of the law of the Middle Ages than any yet made is necessary before we may regard this part of the history of devises in England as established. If we take for example the period prior to the reign of Richard II (A. D, 1371) we have little systematic material to rely on. The valuable but scattered documents, rolls, charters, etc., extant have still to be examined and in the main subjected to exlhaustive and scientific treatment in connection with the origin and the develop- ment of the law of wills in England. The want of certain material is shown even by such an excellent writer as Reeves, when he speaks of wills during the reign of Edward III and is significant. He starts off with such a damaging reservation as, " If lands were devisable it was mostly in boroughs." ^^ Some other law writers are equally vague. Even the great historians of the English law before the time of Edward I, who are of the few scholars adequately equipped for sudh remote investigations, would seem to be very hesitating in this branch of their isubject. They appear to miss, the point in their very first reference to devises. They say: " But just about the middle of the century" (1250) "we find for a short wihile in charters of feoffment a more ambitious clause. It strives to give 354 Kent. Comm. 503; 2 Black. ssco. on Litt. 1116 and see i Roll. Coram. 373. Even Digby, Hist. R. 608 and 6 Rep. 16&; Bacon, Reading P. so states (see Sth ed.), but his on the Statute of Uses, 20. reference to Glanvill, 102, n. 2, doeb "^ Hist. Com. Law, 215 (Finla- not bear him out. son ed.). Introduction. 13 the feoffee that testamentary power which the common, law denies him." *^ The historians fail to state how the common law denies it to him. Is it not possible that these distinguished historians here draw a wrong inference? Is it likely that charters drawn up by scholars, probably law-men, went openly counter to the com- mon law? Is not the truer inference from such 'charters rather that tlie common law was then consistent with venia testandi and generally recognized the privilege of devising land? That the feudal constitution, even then was circumscribing in some way the testamentary power of disposition of certain tenants in chief, is not inconsistent with the coexistence of a general power to devise. That the purely feudal law or the law regulating the greater fiefs had some difficulty in conceiving of an hereditary feud, and next of an hereditary feud which could be alienated withoiit the consent of the heir is apparent in medieval law.^* But we find signs that the conception of property was stronger than -the feudal law, and /that the right to dispose of land 'by last will was maintained after the Conquest and -even when the feudal law had triumphed. At a later era of legal history the Statute of Uses*" is sometimes regarded as conclusive. That the Statute of Uses (27 Hen. VIII, •chap. 10) does plainly state " that by the commion law " of tliat day " lands tenements and hereditaments ' be not devisable ' " is, however, by no means conclusive evidence. In the first place the statement is too late. In- the next place the Statute of Uses (certainly one of the most interesting of all statutes) was like the Fourteenth Amendment to our Federal Constitution, a purely revolutionary document. The Statute of Uses was a part oi the war between the Church and the State, or the King within the State. Its real design was to give fair notice to master churchmen everywhere that his civil jurisdiction in England was over. That this great statute has had tremendous consequences in English laiw (as sieen even in the present law of the State of New York, where with S'Omejvariation that statute still stands) was no part of the original design of the statute. This is shown by the grave though different 38 p. & M., Hist. E. L. II, 26. " Its real title is "An Act concern- 38 Cf. Madox, Form. Anglic. ing Uses and Wills." passim; Spellman, Ancient Deeds, 234- 14 The Decedent Estate Law. ways Bacon and Coke tried to make this curious statute ultimately- fit into the orderly jurisprudence of the common law.*^ That it ultimately did fit into modern jurisprudence with splendid restilts is to the lastinig credit of these great common 'lawyers who led the way. It is susceptible of proof that the recital in the Statute of Uses mieans no more than that, in the King's regular courts and by tlie old feudal law of England recognized in those tribunals only,, certain lands in England could not pass directly by devise away from the heir. That such lands did pass in effect in the church- men's courts*^ by a will in some form we know, and .this is apparent from the rest of the recital in the Statute of Uses.*^ That nearly- all the lands in England could by some one law of England be dis- posed of by a last will in some form long before the Statute of Wills, in the reign of Henry VIII, is, we think, shown by the facts which we are about to narrate. That after the Conquest all lands in England did not cease to be devisable until the Statute of Wills is apparent if we consider first the borough or burgage lands and lands in some ancient towns such as London, York and Oxford. They, at least if held for a fee simpile, always remained devisable in England after disiposition of property to take effect at death was recognized at all.** It is also apparent that the " Conquest " and the stricter feudal law which followed it had no effect wliatever on such dispositions of burgage lands. This only goes to prove that whenever land is regarded in the mediaeval law of England as the property of the possessor and free from certain tenurial obligations it passes by will. It is, we think, only when his property right is not complete or the status of its possessor is by law immediately subordinated by tenure to some great person that it will be found that such a possessor became unable to devise liis land by .will.*° Doubtless *i Take the trouble to read Bacon ;of -wills heretofore made of any on the Statute of Uses, 42 Eliza- lands, tenements and hereditaments beth. There is a London ed. 1785. to the great trouble of the King's 42 These -were only nominally subjects, etc., etc." courts of the King until the reign "i Roll. Abr. SS6; Litt. § 167; of Henry VIII. Co. on Litt. 1116. Cf. Glanvill, Lib. *' See clause g. "And for as much VII, chap. i. as great ambiguities and doubts may <5 Reliquiae Spelmannianae, ib. 127,, arise of the validity and invalidity 128, and see below " feuds." Introduction. 15 some lands in England by the terms of the gift*^ W€re originally not aJienable at all, or if alienable were so only sub modo or con^ ditionally. All such qualifications affecting the grant would natur- ally to some extent influence the subsequent legal development until time at last effaced the conditions or subjected the lands expressly to more general rules of law. But borough lands were not in their origin ordinarily affected by qualifying terms, and citizens or burghers were freemen. Consequently we find that such lands are constantly devisable from very early times.^^ In addition to bor- ough lands all gavel-kind lands of Kent were devisable.^^ Thus we perceive that it is not true, that before the Statute of Wills land as land had generally ceased to be devisable in England. Cer- tain fiefs or manors may not have been tran'smissible directly by will according to the law recognized in the King's courts wihich administered the law of feuds or the original of the so-called com- mon law of land.*' But this does not prove that land as land could not pass by devise in some form prior to 32 Hen. VIII. That the civil or feudal couTts lost jurisdiction of devises of some lands in tenure^" at some time after the Conquest is not to ba denied, and that by some arrangement the Courts Christian were not to deal with questions affecting the freehold or seisin of lands must be admitted.-''^ Long before the Statute of Wills the ecclesias- tical courts, as it is conceded, did recognize devises O'f those lands which were purchased by the owner in contradistinction to heir- land or land inherited.°- Chattel interests in lands were also devisable at common law in- dependently of the Statute of Wills.'^ Through their curious his- <6 Glanvill, Lib. 7, chap. r. the words " estate en fee " means a *' Litt. § 167. fief — not land qua land. <8 Sandy's Hist, of Gavel-kind, ^o wilds Case, 6 Rep. 16&. 281; 2 Black. Comm. 84. ^i gee the Charter of William the *9 Rolle is frequently cited as an Conqueror separating the church authority for the general law. Now courts from the feudal. 2 Burn's Rolle in his Abridgement (ed. 1668) Eccl. Law, 33; also Doc. Rel. to 608, says "An estate en fee ne puis- Church History, 57. soit etre devise per le common ley" ^'2 P. & M. 327; White, Out- and he gives a reason that makes lines of Legal History, 193. it apparent he referred to death- ^3 1 Roll. 608 ; i Jarman on Wills, bed dispositions only. In any event 94 (4 ed.). 1 6 The Decedent Estate Law. torical development, it will be remembered, terms of years are not classed as real property by the common law of England but as personal property."* Yet long terms of years (ten thousand) "' actually carried all the profit and enjoymient of the land itself. °° Such leases were very common in England from early timeis.'^ Thus by indirection all leased land in England could at common law pass by Ijhe will of the lessee, and apparently without regard to the status of the lessee. Even the King's or the common-law courts always recognized such disposition of lands.'* So it is evident that there was nothing in the subsitance of the law which kept land as land from being devisable. Lands Within Many Manors also Devisable by Custom. The manorial system of England, or that system which there prevailed when the feudal constitution was fully consolidated in that coun- try, recognized, as did all feudal law, a double proprietorship.^' A superior ownership of the lord of the fief coexisted with the inferior estate or property of the tenant. Prior to the separation of the secular and ecclesiastical jurisdictions by the Conqueror, the manor courts had jurisdiction of wills of the feudatories or ten- antry.*" It is certain that a custom of. devising lands within some manors continued for centuries before the Statute of Wills.'* That feudal polity may have prevented the lord of the manor, or the military tenants and tenants in chief, from alienating their fiefs is perhaps evident from sudh a statute as De Praerogativa Regis.^^ But such is not the point of inquiry. The pdmt is that tenants within some old manors (not copyholders) could devise their freeholds hy custom.'^ This fact is evidence that other lands in England besides borough lands and gavel-kind lands were devis- able before the Statute of Wills. The manorial system of England, as it is now generally believed, " Fowler's Real Prop. 210. m Maine, Ancient Law, 286. BSLovelass on Wills, etc., SS- «» Stubbs, Const. Hist. III. 345. "Powell on Devises, 140. 61 See 2 Bla. Comm. 375; Sandy's "Fowler's Real Prop. 158, 159.210 Hist, of Gavel-Kind, 93, 135, 281. (3d ed.) ; Freeman, Norm. Conq. V. ^^17 Edw. 2. 520. 63 Robins, on Gavel-Kind, L. 62, ES I Roll. 6c8. chap. 5, cited by Blackstone. Introduction. 17 grew out of the prior free village communities and the common field system. Long before the Norman invasion the system of private jurisdictions tended to the conversion of the old English communes into "' manors," and when the Normans came, the names of their more matured system of feuds fitted fairly well into the conditions of land-holding in England. It will be remembered that after the breaking up oi the Carlovingian empire the Normans, in a comparatively short period, had become the most cosmopolitan aind brilliant race on the Continent. Norman French was spoken from the Loire to the confines of Flanders, and for from two to three hundred years it was tlie language of the ruling classes of Eng- land. During this long and formative period in English his- tory the laws of the English realm, the proceedings of parliaments, or what passed for parliaments, and the recorded proceedings of the courts of justice in England were all expressed in this Norman French,"* of which we still find a survival to-day in Canada. As words alone are very living and very influential things in the devel- opment of the institutions of any nation, it is impossible — at least for those of us who are free from the English tendencies to mag- nify the originality and isolation of English institutions — not to deduce from the use of Norraan French in England that the feudal system of Normandy was ithe most potent of all the coinverg- ing forces in campleting tlie feudalization of England. Precisely bow the private or seignorial jurisdiction within the m:anors of England dififered from like private jurisdictions on the Continent is not yet clear. That it differs much less than is assumed in England is however susceptible of demonstration. Doubtless the manorial system of England exhibited a certain individuality in particulars, growing out of local necessities, and England may be said to have had its own system of feuds and finally its awn feudal law of land, out of wihich developed the common law of landed property. From early times there were manors in Kent, as well as else- where in England. One of the Kentish manors, indeed, was chosen by the law officers of the Crown as the pattern of the peculiar tenure by which the Duke of York first held New York of the ** Fowler's English Grammar, 86, 87 ; Taine's Eng. Literature, Book I, chap. II. 2 i8 The Decedent Estate Law. Crown.'' That the feudatories or tenants in the Kentish manors hiaid always a power to devise is, we think, admitted by all the authorities. Unfortunately the manorial rolls of England belonging to the first succeeding centuries after the Conquest, if they existed, are very little known. There is some indication of one as early as 1239. We do know that in such manors as " King's Ripton " there are evidences which point conclusively to a custom of devising lands in that manor as early as the thirteenth century.'^ That by the law of thie King's regular courts some fiefs or man- ors becamie not devisable by some lords of the manor after the Conquespt and before the Statute of Wills, has been already noticed,''^ without however conceding the accuracy of the general staitement, that before the Statute of Wills lands generally were not devisable in England. Fiefs. After the Normans came, all the agricultural land in England was ultimately divided into manors by the feudal law and into parishes by the ecclesiastical law. Manors were feudal fiefs. Under the feudal constitution of England (by which is meant that law which regulated tlie occupiers of certain large areas of land in Englsmd in the days both before and after the Norman King William I)*' certain hereditary fiefs or feuds were no doubt in some ways inalienable by the feudail proprietor, the seigneur. Precisely when and how long his power of alienation was suspended in England is not determined with accuracy. But when the fiefs or seignories became alienable inter vivos, it is rea- sonably sure that a power of alienation by will soon followed in some form. Feudal law was a rational system for the times, but it -was never the entire law of England, although it was very exten- sive in operation and in legal consequence. Feudal law governed ^5 " As of our Manor of East ^* It is now generally conceded Greenwich in our county of Kent." that general statements of legal his- See this charter. Appendix I, Hist. torians about the introduction of the Real Prop, in New York. feudal system by William the Con- ^ Selden .Society Pub. for 1888, queror are errors, pure and simple. 12S, 127; I Williams on Executors, On the other hand the influence of p. 171 (2d ed). the Normans is sometimes underesti- ^^ Reliquiae Spelmannianae (edi- mated, as they were a ruling class, tion of 1698), 21. Introduction. 19 only men of the fief. The literary caste, or the clerks, and the men of the corporate church generally, were then governed by church law,°° except in some few particulars where the mien of the fiefs proved the stronger. Influence of the Church on Wills in England. The cessation of a regular jurisdiction over devises in the King's court, which at first had cognizance of fiefs and finally of landied property, is no doubt in soime subtle way intimately connected with a jurisdic- tion gained by the Courts Christian, or the courts of the church- men, over trusts or breaches of faith, " laesio iidei." It is now generally conceded by English historians that the English practice of conveying land to uses originated with the religious order of the Franciscans about the end of the thirteenth cejitury. But as the records and precise jurisdiction of the spiritual courts during a long period in England are still matters of great uncertainty, it is impossible at present to fix the exact date when the sipiritual courts gained, and the King's courts lost, some kind of a jurisdic- tion over devises. But we shall notice hereafter that Sir Matthew Hale fixes the cessation of a common-law power to devise in the reign of Henry II {circ. 1154), and yet there is proof positive that this date is too early. It is also to be noticed that Hale's use of the term common law, in its purely modern sense, in speaking of mediaeval institutions, is entirely inaccurate, as in the thirteenth cen- tury "jus commune" or common law could only denote the law common to all tlie people of all the various districts or counties of England and not, as now, customary law, or tfhe law of the King's court or even the Lex Anglia or whole body of the law of England. It is almost certain, we venture to think, that the juris- diction of the feudal courts over devises ceased in England just about the period when the Courts Christian gained it by indirection. Even before the establishment of the chancery as a regular court of the real'm under clerical chancellors the Church had its own courts, of some of which we know nothing.'" There were a great nun^ber of courts in Engand of which little is now known. But all observers 63 The church men always re- ""> Coke's 4th Inst. ; Holdsworth, H. jected the Leges Barbarorum. They E. L. wanted to be governed by some kind of Roman law. 20 The Decedent Estate Law. agree that the machinery of the Courts Christian was ipowerful and effective.'^ Even in the Anglo-Saxon times it is conceded that there was a disposition on the part of the Church to take cognizance or jurisdic- tion of breaches of faith — laesio UdeV^ Yet it is contended by- some historians that the lay courts from the reign of Henry III (1216-1272) interfered effectually by prohibition if the Courts Christian meddled with land." That such prohibitions ever could have extended effectually to devises to uses, all the subsequent and au/thientic history of uses, we think, absolutely disproves, and we, therefore, feel at perfect liberty to doubt that the King's courts ever succeeded before the Statute of Uses in depriving the Courts Christian of an indirect, but complete, jurisdiction over devises of lands.''* As the subject of the jurisdiction of the Courts Christian in England is intimately concerned with various rules which still find an expression in the " Decedent Estate Laiw " of this State, enacted in the year of Grace 1909, let the reader consider for a momient, in a purely narrative and untecliiaical manner, the histoirical development of the courts of the churchmen, as established in Eng- land in the Middle Ages and during the formative period of that brilliant and wise system of jurisprudence, known as the Lex Anglia, or at present in our common and inexact speech as the " common law.'' We little conceive of the power of the ohurchmen in the Middle Ages, when the institutions of modern times were being formed.'^ An excellent illustration of this power was furnished by Arch- bishop Warham who in repily to the complaants of the English House of Commons concerning church laws, even after the fall ■of Cardinal Woolsey, said in substance tliat he was sorry for their ■discrepancy from the laiws of the realm, but as the laws made hy the clergy were in conformity with the will of God, the laws " 23 N. Y., pp. 600, 601. '3 1 Holdsworth, H. E. L. 239. '2 London Law Mag. & Rev. (4th '* Cf. Digby, Hist. Real Prop. (5th series) IX, 404; 2 Holdsworth, H. ed.), 320, 321. E. L. 75 ; Justice Holmes, i L. Q. R. 'b 23 N. Y. 600. '^73, 174; Lord Justice Edward Fry, 5 L. Q. R. 235-241. Introduction. 21 of the realm had only to be altered, and the difficulty would van- ish. Well may the historian Froude remark of this reply, " What must have been the position of the clergy in the fullness of their power, when they could speak thus on the eve of their prostra- tion!"'"' Part of the answer to Froude's ejaculation is the ecclesi- astical law of England, incltiding our law of testamentary disipositon, the equity jurisprudence of England, including its valu- able procedure, and a part of tlie Admiralty Law, besides much else in our jurisprudence. All this is due to dhurchmen'. Under William the Conqueror, as all historians, both legal and secular, agree, the political and jurisdictional powers in England were partitioned between the men of the Fiefs and the men of the Church. If we keep this leading fact in mind it unravels many, hiistoirical and legal tangles of some difficulty. In the Middle Ages thie ecclesiastics were a hierarchy, while the feudal seigniors were a governing aristocracy. In molding the law of the land there was only the usual struggle of forces in England. The ecclesias- tics were in the end strong enough and learned enough to force much Roman law in the English corpus juris, including that of wills. The feudal seigniors on the other band were strong enough to make the feudal law ultimately what we now call the common law of land, although in a few places the fettdal law could not displace a still older law which is now called " custom." '''' That during the struggle between the feudal seigniors in England, or the King their head, and the churchmen, the jurisdiction of the King's courts over devises slipped away from them is apparent. This is probably what Coke and some other common lawyers really mean by the general statement that wills of rKtl property were forbidden by law before tlie Statute of Wills.'* That disposi- tions of land, in effect by last will, ever ceased after the Conquest is a different assertion. Such a statement is too definite. It is nowhere made by Littleton wiho wrote very accurately for the law- '6 Froude's Essay, " Times of Kings' courts' law. Sometimes it Erasmus and Luther," p. 49. means the law common to all Eng- " It is an error to confuse '' com- land. Sometimes it means Lex Ari- mon law " and " custom." Both glise. See Mackonochie v. Lord Pen- terms mean very different things in zance, L. R. 6 A. C. at p. 446. different ages. Sometimes "common '^ Cq. on Litt. 1116; 4 Bla. Comm. law " means only feudal law or 430. 22 The Decedent Estate Law. men of his own day. It is very doubtful if it is made by either Glanviir° or Bracton.*" The antiquarian laiwyer, Sir Martin Wright'* certainly does in 1730 finally make the statement gener- ally, yet very vaguely, and Blackstone only follows him in it at one or two places in his Commentaries. At other places Blackstone is very guarded when he speaks of power to devise. The learned Sir Matthew Hale simply says, that the power to de- vise disappeared in the reign of Henry II (A. D. 1154).*^ Why this date we wonder? If we could ascertain definitely that it was about this age that the Church or churchmen in some way gained cognizance of devises of uses,^' we should have reason to think that such general statements of law-writers really point to the time when the feudal courts lost jurisdiction of devises and the Church gained it. But there seems to be nodiing true about Hale's date fixing the disappearance of the power to devise generally, for we know that in the following reign of Henry III that king granted leave to his uncle Peter of Savoy to devise all his lands in England to his collateral relatives, and it appears that such devises were then not uncommon. But no doubt such, a power is assumed by common lawyers to disappear at some time, and that it probably did disappear out of the king's regular courts to some extent about the time when the church enforced devises of uses is widely affirmed and generally believed by law writers. But pre- cisely when, in what form, and how, this happened the historians do not disclose.'* That it was much earlier tlian generally thought when the dhurch began to enforce, in some way (perliaips not by chancery process of subpcsna), devises of uses against feoflEees to uses, there is every reason to conjecture." But all this history, if we analyze it, relates rather to the law of jurisdiction than to the right of decedents to m'ake a disposition of tlior lands by the laiw of England. It is now generally accepted that the practice of conveying lands to uses originated with the Franciscans in England " Glanvill, Lib. vii, chap. 5. «< See Holdsworth, Hist. Eng. Law, soBracton, f. 61. 11, 207; III, 67. 81 Int. to Law of Tenures, 171. 85 gee 7 Rich. II, chap. 11, cited by 82 Hale's Com. Law, 308. Lord Bacon in his Reading upon 8SA suit to enforce a use is only a Uses, 23. Cf. Holmes' Early English proceeding against a person to com- Equity, i L, Q. R. 162. pel him to do equity. Introduction. 23 about the end of the thirteenth century. It is highly probable that shortly after this tiniie devises of uses were recognized by the Courts Christian witli some effect upon the prior law relating to wills of land, and that this explains the absence of a jurisdiction of devises in the king's or feudal courts. Uses, That the ecclesiastics in England, in some form or other, at a very early day enforced wills against feoifees to uses is con- ceded by legal historians generally. But the regular jurisdiction of the chancellors over uses by formal process issuing out of what is now called " an established court of the realm " is thought by law- yers to begin only at the end of the reign of Henry V (A. D. 1413). But this is too late, for before this time there is, as stated before, evidence that the ecclesiastics had assumed jurisdiction over uses in the Courts Christian.'® When the Statute of Wills (32 Hen. VIII) was finally enacted the regular chancery jurisdiction over uses was firmly established and is so recited to be in the statute itself. Lands held to uses, and nearly all lands and manors in England might then be so held, were practically devisable^'' before the Statute of Wills. We have now attempted to show that the statement, that lands in England were not devisable by the law of England before the Statute of Wills (32 Hen. VIII) is manifestly too general. Never- theless it is too late a day for lawyers to recede from the conse- quences of that too general statement, for to it we owe not only the Statute of Wills but also tliat very large and influential depart- ment of modern law, called the law of '"' executory devises." Testaments. Let us now turn away from the subject of devis- ing landed property to that property called by the common lawyers " personal property." We have seen that " testaments " are wills of personalty.** The mediaeval law of England permitted testa- mentary dispositions of at least two-thirds of a man's personal 8^ There were a great number of Courts Christian we have no com- courts in England, the history of plete history or record, which has never been written. Some ^7 Kerly, Hist, of Equity, 81, 84. have been mentioned by Coke in the ** Supra, p. 6. 4th Institute. Of the Halimots or 24 The Decedent Estate Law. property.*" It was not, however, the common law, but the eccles- iastical law which regulated such testaments.^" That testators having families were at liberty to dispose of only one-third of their personalty at some point of time is asserted by Glanvill,'^ who is quoted by Blackstone.''^ This is undoubtedly a survival of the " legitim " of the Continental law, and it long con- tinued to regulate testaments in parts of England as the writ " de rationabili parte honorum" discloses."^ Whether such limitation on the power of testamentary disposition of personal property was local or general in operation has been much disputed."* The limita- tion itself was, however, swept away in some parts of England only by late statutes;. "' Such a limitation on the power of testa- mentation was quite consistent with church law generally. But as the discussion concerning this subject is very familiar and is not very pertinent here we need not stop to consider it at length.'* History sihows pretty plainly that the churchman's conception of an ideal testamentary dis'position for the laity was a third to the widow,"' a third to the children,"^ and a third at the testator's dis- posal, unless there was no wife or issue. It is abo apparent that the free portion, according to the standard of the time, could be dis- posed of to no better advantage than by giving it, or a large part of it, to Holy Church for cliaTity."" Biit there does not seem to have been any direct law to that end. It was theoretically optional with the testator to give or withhold it from charity. 89 Glanvill, Lib. vii, chap, s ; Brae- 95 4 & 5 w. & M. chap. 2 ; 7 & 8 W. ton, f. 60, f. 61. & M. chap. 38; 2 Geo. I, chap. 18. 90 1 P. & M., Hist. Eng. Law, (Surrogate Bradford errs on this 107; 2 id. 350 : Bradford's Intro- point. Intd. i N. Y. Sur. Rep. xxiii.) duct., I N. Y. Surrogate's Reports, 96 2 Bla. Comm. 491, 492, and see xxiv; Conklin v. Egerton's Admr., particularly, FitzHerbert, Nattira 21 Wend. 430, 4/36. Brevium, 122. 9^ Glanvill, Lib. vii, c. 5. 97 Po^j rationabilis. 92 2 Bla. Comm. 492. ^^ Pars rationabilis. 93 F. N. B. 122; 3 Holdsworth, 99 Brad f. Introduct. i N. Y. Surr. Hist. Eng. Law, 434. Rep. xxiv ; and McCosker v. Golden, 9*2 Bla. Comm., chap. 32; Co. Litt i Bradf. Sur. Rep. at p. 66. 176&; Williams on Executors, z; 2 P. & M. 312-353- Introduction. 25 Statute of Wills. The breaking up of the old order of things in the reign of King Henry VIII led to the entire revision of prior rules regulating wills. The Statute of Wills denoted, among other things, an ultimate intention on the part of the civil authori- ties to regulate and control all testamentary successions, whether to lands or to goods and chattels. Churchmen were no longer to have a free hand whenever death knocked at an Englishman's gate. This is 'perhaps the most notaWe reform instituted by the first Statute of Wills (32 Hen. VIII, chap. i). The Statute of Wills made no change whatever in the law regulating testaments or dispo- sitions of personalty. The Statute of Uses (27 Hen. VIII) had been a long step toward the demolition of the duail legal fabric reared so benignly and asitutely by the mediaeval Church. The Statute of Uses (27 Hen. VIII, chap. 10) by fastening the legal title or seisin of lands on the equitable owoer interfered very much, for a brief period, not only with willing the use but with the adminis'trative features oi the Enghsh law of wills. It also disturbed greatly tlie habits and customs of the people of England. A remedy was consequently necessary and the Statute of Wills (32 Hen. VIII, chap, i, ex- plained by 34 and 35 Hen. VIII, chap. 5)'- was enacted, enabling tenants, holding by the socage tenure, to devise their .lands, and tenants in capite, holding by knight service, to devise two-thirds of theirs. In respect of tenure by chivalry this statute made in all probability & real reform of consequence. It wias not, however, until the statute converting all tenures into socage tenure and abol- ishing the military tenures (12 Charles II, chap. 24) tihat the Statute of Wills went into general operation in England. Lord Bacon in his Reading on the Statute of Uses'- regards the Statute of Uses,^ the Statute of Inrolments,* and the Statute of Wills^ as part of the same general legislative scheme. If he is correct in this as- sumiption there never was in England, after the times that uses were devisable, a period when most lands in England were not devis- able either directly or indirectly. The fact that in the feudal courts some great fiefs or feuds held by some tenure in capite were not 1 Repealed i Vic, chap. 26. < 27 Hen. VIII, c. 16. 2 London Ed. of 1785, at pp. 52, 53. ^32 Hen. VIII, c. i. S27 Hen. VIII, c. 10. 26 The Decedent Estate Law. alienable either inter vivos or by a last will only denotes an excep- tion to a general economic custom, amply protected by some other court of competent power. The real reform of the Statote of Wills was largely directed to jurisdictional or procedural laiw irather than to substantive law. As soon as wills of lands could be made pursiuant to a statute the natural place to probate or prove them would seem, to be in the king's, or common-law, courts, which continued to have juris- diction over all such things as fiefs or seisin of lands and tene- ments, later on called " legal titles." But the madhinery for prov- ing wills, if it ever existed in those courts, was long lacking, and hence it is that we find devises rarely noticed at first^ and finally treated in the feudal or king's courts, or (to use the later term of descrijption) in the common-law court of record, only as ajppoint- ments to particular persons or irregular deeds of conveyance.'' We see the effects of this to this day even in New York.* At law the jurisdiction of the spiritual courts and their lineal successors the probate courts over devises has always been .either wholly rejected or of very limited effect.' Statute of 12 Charles II, chap. 24. The Statute taking away tenures in capite and by knight service and turning all chief and military tenures into the (popular tenure by free and common socage^" had the effect of making all the manors and lands in England devisable at law and independently of custom. The Stat- ute of Wills of Henry VIII, then, for the first time furnished a stated and particular authority for wills or devises. All the books on ■wills subsequent to this reign find it convenient to refer llie power of testamentation to the Wills Act." In fact the Wills Act was permitted to become a new point of departure for modern law. sjauncey v. Thorne, 2 Barb. Ch., 514, 513; Corley v. McElmeel, 149 at p. 60. N. Y. 228, 23s ; Dixon v. Cozine, 64 ' Lord Mansfield in Goodright v. Misc. 602. Harwood, Cowper go; Markby, ' Bullet's Nisi Prius, 245, citing §§ S8o, s8i; Ram on Wills, 3; Conk- i Roll. 678; Van Alst v. Hunter, 5 lin V. Egerton's Adm., 21 Wend. 430, Johns Ch. 148, 155 ; Anderson v. An- 436; Rogers v. Rogers, 3 Wend. 501, derson, 112 N. Y. at p. 113. S14, SIS- 10 12 Car. II, c. 24. 8 Rogers v. Rogers, 3 Wend. 501, " See i Powell on Devises, 9. Introduction. 27 Intestate Succession. It it generally conceded by jurists that the early English laws regulating a succession to movable property ab intestato, or the devolution of title and right to such property of an intestate, owe muoh to the Roman Christian Laiw adminis- tered in Engliand by the ecclesiastics.^^ The so-called Magna Charta of 121 5 provided that if any freeman die intestate his chattels shall be distributed by the hands of his next kinsfolk under the super- vision of the Church. In 1285 the administration of estates w^as further regulated so as to secure creditors,^'* and this statute was reinforced by 31 Edw. Ill/'' which is supposed to originate the office of administrator.^' The difference between an executor and an heir or between an administrator and an heir in English law is very marked. The executor and administrator were subjects of the Courts Christian, but the heir, who succeeded to the land only, wias bound by king's law or that feudal law administered in the king's courts. Thus the universitas juris, or universal succes- sion of the Roman heir, was, in English law, the result of a comipromise.^" With the heir the Courts Christian had nothing to do, although naturally they might influence 'his conscience to a great degree. The feudal courts were distinctly against a plurality of heirs, or rather in favor of the principle that the great feud or fief sihould pass as a whole to the eldest son, and this rule became ulti- mately almost triumphant in English law in any succession to landed estates. That the Courts Christian had thus nothing to do with " descent " or succession to real property, is the reason why to-day we do not among other things conduct partitions in the surrogates' coutts, bitt in the successors to the old king's courts of common law, Tvliere different rules of succession ah intestato still prevail. The chancery jurisdiction over partition is conceded to be of very late origin^' and does not figure in the early develop- ment of the present law. The rules then recognized in respect of succession to the personal property of intestates are briefly noticed 12 Markby, Elements, § 560. the next of kin as administrator, and 13 2 P. & M. 385. it gave him right to sue and be sued 1*31 Edw. Ill, Stat. I, c. II. for debts of decedent. 15 White's Outlines, 166. This stat- i^ gee § 10, Holmes, Com. Law. ute directed the ordinary to depute " i Spence, Eq. Juris. 656. 28 The Decedent Estate Law. under the present section of the Decedent Estate Law now regu- lating distributions.^^ Courts Christian. The reader who turns to the pages of Blackstone will find a brief account of the ecclesiastical courts which in his day were cliarged with the jurisdictioin committed to tbem over wills by the Church, and this coincise and admirable account now answers most practical purposes.^^ But he will not find there that the ecclesiastical courts have a longer history than either the courts of common law or of equity. Nor will he find there much account of 'the real processes whereby the men of the Cburiah and ohiurch law gained jurisdiction over wills and testaments in Eng- land. The Tea'l account is not an ignoble one. The jurisdiction was gained for good reasons and because of the excellence and completeness of Roman law as compared with the paucity of Eng- lish law. The words " usurpation " and " greed of ecclesiastics " and other like disparaging epithets, commonly used by post- Reformation lawyers, f)osses'sing historical inclinations, in describ- ing the Courts Christian, have in reality very little to do with the history of the growth of such courts. They are rhetorical flourishes. The Courts Christian doubtless then stood for accumulated civill- zation and administered it in the shape of Roman-Qiristian law all through the ages when the feudal and national forces were playing, also not ignobly but rather more roughly, for secular and politi'Cal power. In the CouTts Christian the Roman and canon law flourished. The dominion of the papacy was consolidated during the eleventh and twelfth centuries by a series of able popes, and this dominion was maintained by the inherent excellence of the canon law which was accepted as the "jus commune" of the Church throughout Europe.^" The canon law was no doubt received in England much as it was elsewhere, and it was also administered there, by ecclesi- astics trained in the law, in Bishop's courts of one kind or another not necessary for present purposes to consider at large. That there were points of difference in detail between the authority and 1' § 98, infra. tical Courts and their jurisdiction in 1^3 Com. 61 seq. History of English Law, I, 352-401. 2" See Holdsworth on Ecclesias- Introduction. 29 reception of canon law in England and its authority and reception elsewhere cannot be denied, but such differences as did exist have since the Reformation been probably much magnified by English- men,^^ in order that they might retain useful portions of the canon law under the very changed conditions, social and religious, which followed the Reformation. In the reign of Charles II, the juris- diction over administration and of probate matters, wills, etc., was still lodged in the several ecclesiastical courts of the two arch- dioceses, or provinces, Canterbury and York. It is needless for us at present to go into details in reference to these ancient courts, and it w:ill suffice to point out that the main courts vested with such jurisdiction were the prerogative courts of the several provinces of Canterbury and York.^'' The Prerogative Court of the Archbishop of Canterbuty was then held at Doctors' Commons in London.-^ In the diocese of Lon- don the Bishop of London ihad testamentary jurisdiction where the effects of the deceased Vv'ere exclusively within his diocese. Otherwise the prerogative court of the archbishopric had jurisdic- tion. There was some sort of appellate jurisdiction in probate matters exercised in the Court of the Arches of the Archbishop of Canterbury.-* In the days of Charles II there were also a great many old local courts in England vested with a jurisdiction of some kind in testamentary matters, probably relics of great antiquity, but with all these the ecclesiastical jurisdiction, actually trans- ferred to the province of New York, has no concern wihatever. That jurisdiction transferred here was a specific post-Reformation growith, and it was quite free from the historical tangles concerning the reception and binding force of papal law, decretals, and mos Curies Romance which proved so embarrassing to Coke and his contemporaries.^^ The early jurisdiction of the Courts Christian in England is one of the well established facts of history. Before the Norman conquest what pass for Saxon wills were, accord- ing to Bishop Stubbs, who is a high authority, published in the 21 See generally Stubbs, The Canon Courts, 30 ; Wood's Institutes, 496 ; Law, Lectures on, the Study of Me- Hale, Hist. Com. Law, 26; 3 Bla. dijeval and Modern History, and Comm. 61, 95. Maitland's Canon Law. (London, 23 Wood's Institutes, 496. i8g8.) 2- See chap. 584, Laws of 1910, chap. 578, Laws of 1910, amending amending § 2624, Code Civ. Pro., § 2625, Code Civ. Pro. 42 The Decedent Estate Law. between wills of lands or real estates and wills of things not land, new called " personal property," for in the following statute these differences are still very fruitful of practical results. There has been no attempt in this introduction to deal profoundly with his- torical problems of magnitude. The only effort has been by a few generalizations to show to the reader of the following sitatute the great importance which historical considerations have on rules of law still perpetuated in this State in the " Decedent Estate Law " of 1909. The Decedent Estate Law CHAPTER i8. AN ACT relating to estates of deceased persons, constituting chap- ter thirteen of the consolidated laws. Became a law February 17, 1909, with the approval of the Governor. Passed, three-fifths being present. The People of the State of Nciu York, represented in Senate and Assembly, do enact as follows: CHAPTER 13 OF THE CONSOLIDATED LAWS DECEDENT ESTATE LAW Article i. Short title and definitions (§§ i, 2). 2. Wills (§§ 10-47). 3. Descent and distribution (§§ 80-103). 4. Executors, administrators and testamentary trustees (§§ iio- 120). 5. Laws repealed; when to take effect (§§ 130, 131). ARTICLE I. Short Title and Definitions Section i. Short title. 2. Definitions. § 1. Short title. This chapter shall be known as the " Decedent Estate Law." Comment. The title of this law is purely arbitrary English. As a mere symbol it may be regarded as suggestive and even catching, [43] 44 The Decedent Estate Law. § i and therefore as not wholly inapt. If we have regard to linguistic poirity or even to linguistic propriety, the title of this law is not consonant with English speech. Decedent is a substantive or noun, not an adjective. Therefore, if used witli another noun " dece^ dent '' requires a hyphen. Etymologically " decedent " means a d)Tng person and not a deceased person.^ But by a curious legal usage the word has oome to signify instead of a living person a deceased person only, and this perverted usage is now extensively sanctioned by authority, especially that of legal writers.^ But if taken in its secondary sense the word requires to be in the possessive case, if used with law. Decedents' Estate Law would not be in- accurate, if we defer to the late usage just indicated above. ^" Decedo" " decedens'' " deces- Diet., sub voce "Decedent," and sus." see Matter of Miller, 64 Misc. at 2 Webster's Diet.; Bouvier, Law p. 341. § 2 Definitions. 45 § 2. Definitions. The term " will," as used in this chapter, shall include all codicils, as well as wills. Formerly 2 R. S. 68, § 71 : § 71. The term " will " as used in this chapter, shall include all codicils, as well as wills.' Comment. The term " will " as used in this chapter is a gen- eral term of law and includes at the present time both a devise and a testament.* Since the Statute of Wills (32 Hen. VIII) such a comprehensive use of the term " will " is not technicaiHy inaccu- rate,° altlhough by the common law of the sixteenth and seventeenth centuries a disiposition of lands to take effect at death is a " de- vise or will," " while a like disposition of personal property is a " testam^ent." '' The common-law writers generally accurately ob- servicd the distinction, and in legal literature would arrange cases accordingly under " devise ", if the subject discussed related to wills of land, and under " testament " if it referred to personalty.* But even as far back as Littleton's day there seems to have been no absolute breach of technical usage in using any of tihese terms as synonymous or inclusive of the others. For example, even Little- ton says, a man can " deviser per son testament," which Coke freely translates " devise by his testament." ® Will. A will or a testament is most concisely defined by Swin- burne as "a just sentence of our will touching that we wiould have done after our death." " While he distinguishes a will from a testamient, his definition is substantially a mere repetition of the 3 Repealed by Decedent Estate makes the true distinction, 2 Comm. Law of 1909. See below, § 130. 373. 498. 4 2 R. S. 60, § 21 ; 4 Kent. Comm. * See Wood's Institutes (ed. 1772) ; 502; and see supra, pp. 2, 8, 23. West's Symbolaeography, i 632 (ed. 5 Burn's. Eccles. Law, tit. Wills; IS94) ; Tomlins' Law Diet. (ed. West, Symbolaeography, § 633; 2 R. 1835) tit. Wills. S. 60, § 21. 'Co. on Litt. Ilia; Tomlins' Lyt- 6 See I Powell on Devises, 9; tleton, § 167. Devise is the French Lasher v. Lasher, 13 Barb. 106; deviser, to divide into parcels. Conklin v. Egerton's Admr., 21 "Swinburne, pt. i, § 2; ibid., pt. Wend. 430. I, § 4. 'Jarman on Wills, i; Blackstone 46 The Decedent Estate Law. § 2 definition of the Latin writers who treated o'f modern Roman law.^* This definition has been more or less ampHfied by the modems, but not improved. ^^ Swinburne subsequently explains at length the word " sentence " in his definition, but in substance, as a formal expression of "ultima voluntas." In the old parabolic manner he detects a close analogy between a judicial sentence and this final sentence of a testator in respect of his property. Doubtless a will when proved does become virtually a judgment of a court in. respect of its contents. In the " Surrogates Law " ^^ a will is defined for the puirposes of that act in the same way as in section 2 of this act : " The word ' will ' signifies a last will and testament, and includes all the codi- cils to a will." ^* But this definition is obviously no real definition, but one in a circle, as it still leaves it to the decisions to determine under the statute what instruments constitute a " last will and testament." Section 21 of this act contains the final statutory expression of the formal or ceremonial requisites of a last will and testament. When all the statutory requirements of that section are complied with, an instrument is then evidential of a particular testator's last will and testament,^' but a decree probating the in- strument is sitill conclusive only as to personalty.^" The distin- guishing feature of a will is that it is a disposition of property which is not to take effect except upon the death of the giver or grantor. If it is intended to take effect in preesenti but upon a condition, it is not a will.^^ That an instrument is a testamentary paper does not depend on the validity of its dispositions or on its form, but on its substance.^* 11 See " Terms de la ley," " Testa- 16 N. Y. 9, 49 ; Matter of Diez, 50 ment;" Co. on Litt. mo, and N. Y. 93; Younger v. Duffie, 94 N. also Pothier " Coutumes des Duche Y. 539 ; Gilman v. McArdle, 99 N. Y. Bailliage et Prevote D'Orleans, 479. 451, 461 ; Perry v. Perry, 21 N. Y. ^ Supra, p. 2; imfra, p. in. Supp. 133; Campbell v. Morgan, 68 "Chap. 18, Code Civ. Pro. Hun, 490. "Subd. 4, § 2S74, Code Civ. Pro. is Estate of McMulkin, S Dem. See note to § 2, Appendix i, infra. 295; Carle v. Underbill, 3 Bradf. 15 See below, under § 21. loi ; Matter of Nies, 13 N. Y. St. "See above, pp. 40, 41. 756; Matter of Bebee, 6 Dem. 43. " Langdon v. Astor's Executors, § 2 Codicil. 47 Not every -written disposition of property to take event upon the death of the owner is a last will or testament. It is not uncommon to attempt by reservations, contained in deeds O'f conveyance, to be- stow benefits in perpetuity upon third persons. But all such dis- positions are either void per se^^ or else void because in reality testamentary dispositions.'"' Thus rent may not be reserved in a lease in favor of lessor's widow, for that is a testamentary dispo- sition.^^ Codrcil. A codicil in modern law has come to indicate soma suipplementary, alternative, revocative, or additional, provison made by a testator and intended to be taken as a part of his prior will or codicil.^^ It must consequently be executed with the same for- malities as a will,^' and then it amounts to a republication of the original will.^* A codicil in modern laiw is not inferior to a will, but, being posterior in point of time, is in some respects superior or controlling. On the other hand, a codicil in the Roman law was an inferior informal kind of will, to enable the sudden disposi- tion of property on the near approach of death, as we see from Justinian's Institutes, w'here it is said " * * * ne confundatur jus testament orum et codicillorum." ^'^ Before the Statute of Wills it is highly probable thait a codicil in England was more infoirmal than a will, as executors could not be appointed by codicil.^" Now one may make any number of codicils under the New York Statute of Wills, provided they a.re executed with the same formality as a will; for all testamentary dispositions must now comiply with the statute, and then the first of such codicils is of equal force with Ijhe last, if they are not contradictory. But codi- cils differ in their nature from wills, as no man can die with two wills or testaments ; but one may die witii a will and any numiber 1' Hornbeck v. Westbrook, 9 Johns. 24 jfip v. Van Cortland, 7 Hill, 73; Bridges v. Pierson, 45 N. Y. 346; Brown v. Clark, jy N. Y. 369, 601; Sterling v. Sterling, 98 App. 277 > Caulfield v. Sullivan, 85 N. Y. Div. 426. 153, 160. 2» Boon v. Castle, 61 Misc. 474. 25 Institutes Just., tit. XXV, De 21 Priester v. Holock, 70 App. Div. Codkillis. Cf. Swinburne, pt. 7, § i. 256, 259. 26 Swinburne, pt. I, § s> pl- 2 ; 224 Black. Comm. 500; Hard v. Godolphin, pt. I, § 2, chap. 6; 4 Ashky, 117 N. Y. 606, 613. Burn's Ecclc. Law, 137. 234 Kent. Comm. S3i. 48 The Decedent Estate Law. § 2 of codicils,^' and the last of the cx>dicils does not affect its predeces- sors, except in so far as they are inconsistent.^^ But it is desirable that each codicil refer to the will, and if possible to any preceding codicil, so that tlie intent of the testator may be the more obvious.^® Swinburne says a codicil to a will is like a boat tied to a ship,^" but this simile is classical, not original. As remarked by some of the old la.w writers, a codicil sieems at first more properly to belong to a testament or disposition of per- sonalty tihan to a will or devise of realty. But this distinction no longer exists in modern law, and a codicil now affects a will or de- vise precisely as it affects a will of personalty.'^ There are various rules established for the construction of wills when they are effected by a codicil, such as that the codicil disturbs the will no further than necessary to give it effect.^^ Wills and Testaments. Prior to the Revised Statutes, and under the old statutes re-enacting in New York the English Statutes of Wills and the Statute of Frauds, the publication of testaments or wills of personalty was even more informal than the publication of devises or wills of land,'' for devises were then regarded as con- veyances.''' 27 1 remember a case where a late 'i Powell on Deyises, 20, 21. distinguished lawyer in this State, ^2 Brant v. Wilson, 8 Cow. 56; once a judge of the Court of Ap- Kane v. Astor, 5 Sxndf. 467, 519; peals, drew seven codicils to one will, Conover v. Hoffman, i Abb. Ct. and infinite trouble they gave in con- App. Dec. 429. struction when all had been proved. ^^ Public Admr. v. Watts, 1 Paige, Also see Kane v. Astor's Executors, 347, 356, 368; chap. 47, Laws of S Sandf. at p. 519. 1787 re-enacting the former English 28 Lovelass on Wills, 372. statutes in force in New York. 29 Parsons on Wills (ed. 1855), 50. ^* Supra, p. 26, 30 Swinburne, pt. I, § 5. The Decedent Estate Law. 49 ARTICLE 2. Section 10. Who may devise. Wills. 11. What real property may be devised. 12. Who may take real property by devise. 13. Devi.ses of real property to aliens. 14. Wills of real estate, how construed. 15. Who may make wills of personal estate. 16. Unwritten wills of personal property, when allowed. 17. Devise or bequest to certain societies, associations and corpo- rations. 18. Devise or bequest to certain corporations. 19. Devise or bequest to certain benevolent, charitable and scientific corporations. 20. *]>evise or bequest to certain bat? associations and fire corporations. 21. Manner of execution of will. 22. Witnesses to will to write names and places of residence. 23. What wills may be proved. 24. Effect of change of residence since execution of will. 25. Application of certain provisions to wills previously made. 26. Child born after making of will. 27. Devise or bequest to subscribing witness. 28. Action by child born after making of will, or by subscribing witness. 29. Devise or bequest to child or descendant not to lapse. 30. Reception of wills for safe keeping. 31. Sealing and indorsing wills received for safe keeping. 32. Delivery of wills received for safe keeping. 33. Opening wills received by surrogate for safe keeping. 34. Revocation and cancellation of written wills. 35. Revocation, by marriage and birth of issue. 36. Will of unmarried woman. yj. Bond or agreement to convey property devised or bequeathed not a revocation. 38. Charge or incumbrance not a revocation. 39. Conveyance, when not to be deemed a revocation. 40. Conveyance, when to be deemed a revocation. 41. Canceling or revocation of second will not to revive first. 42. Record of wills in county clerk's office. 43. County clerk's index of recorded wills. 44. Recording will found in another state or foreign country. 45. Authentication of papers from another state or foreign ,, - country for use in this state. 46. Validity of purchase notwithsanding devise. 47. Validity and effect of testamentary dispositions. I 4 * So in original. 50 The Decedent Estate Law. § lo § 10. Who May Devise. All persons, except idiots, persons of unsound mind and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions of this article. Formerly 2 R. S. s6, § i : § I. All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament, duly- executed according to the provisions of this Title. 36 Comment. This section of this act is substantially the same as the Revised Statutes, which in turn made little change in this sec- tion as it stood in the New York statutes,^" re-enacting the English Statutes of Wills and the Statute of Frauds.^^ This particular section is taken indirectly from 34 and 35 Hen. VIII, chap. 5, § 14, w'hioh is as follows: "And it is further declared and enacted by the authority aforesaid That wiUs or testaments made of any manors, lands, tenements or other hereditaments by any wom-an covert or person within the age of twenty-one years, idiot, or by any person de non-sane memory shall not be taken to be good or effectual in the law." ^^ Before proceeding to the further consideration of this particu- lar section it would be well for the reader to hajve a clear concep- tion of the development of the Statutes of Wills in New York. The Statute of Wills in New York. When the English first established a government in the Province of New York it was regu- larly ordained that the laws established by the subordinates of the imperial authority were not to be inconsistent with the laws of 25 2 R. S. 56, § I was amended in and chap. 375, Laws of 1849 by " Do- 1867 by § 3, chap. 782, Laws of 1867, mestic Relations Law" of 1896 and striking out the words " married 1909. women," as chap. 200, Laws of 1848, sg Chap. 47, Laws of 1787 ; i K. & amended by chap 375, Laws of 1849, R. 178; i R. L. 364. had enabled her to devise her real 37 32 Hen. VIII, chap, i ; 34 & 35 property as if sole. 2 R. S. 56, § i, Hen. VIII, chap, s; 29 Car. II. as amended, was repealed by Dece- ^sThis is exactly the language of dent Estate Laws of 1909 (see below, chap. 47, N. Y. Laws of 1787. § 130), and chap. 500, Laws of § lo Wills Acts. 51 England.^" The Duke of York, who at first held the province as a fief of llie Crown from the year 1664 to the date of his accession, February 6, 1685, held it by the tenure of free and common socage and not in capite or by knight service. The duke's patents from the Crown and the formal introduction of English law, by clauses inserted in comimissions and instructions from the Crown, served to introduce into New York all the relevant parts of the comnaon law of England and also all the relevant statutes enacted in Eng- land prior to the establishment of a local legislature in New York. Among the statutes thus introduced and acted on were the old Statutes of Wills, passed in the reign of Henry VIII.*° These cele- brated statutes were always assumed to be in force in New York after 1664, and were constantly acted on in New York until the year 1787. The duke's oivvn laws of 1664, 1665, did not cover this ground.*^ In 1683 the first regular legislature held in New York ■enacted " that all wills in writing, attested by two credible witnesses shall be of the same force to convey lands as otlier conveyances." *^ But this act of 1683 was disallowed by the Crown, and consequently was operative or probationary, as it was called, for a short time only. It was quite unnecessary. No other act in reference to the validity, force or effect of wills or testaments was enacted in New York until after the Revolutionary War, when Messrs. Jones and Varick had, by legislative direction, prepared for re-enactment by the State Legislature all the English acts which ihad been ex- tended to New York and were proper for re-enactment by the new government. The Statute of Frauds (29 Charles II). The professional reader will recall that under the old English Statute of Wills, en- acted in the reign of Henry VIII, almost any instrument, however informal, would pass for a will and testament. Neither signature 39 The reader is referred for fuller 1694, and the chapters on Legal and account of the laws of the Province Const. History of N. Y., in Memo- of New York to this writer's Hist. rial Hist, of N. Y. City. of the Law of Real Prop, in N. Y. ; "32 Hen. VIH, chap, i; 34 and also to his chap. H, Introduction to 35 Hen. VHI, chap. 5. Real Prop. Law, and also to his In- « j n. Y. Col. Laws, 6 et seq troductory chapter of the Grolier ^2 j n. Y. Col Laws, 1 14, reprint of Bradford's N, Y. Laws of 52 The Decedent Estate Law. § lo •nor even sealing were then necessary to authenticate a last will and testament under those statutes. The Statute of Frauds (29 Charles II [A. D. 1677] ) corrected tliis to some extent and exchanged the informality for something more consistent with the gravity of the occasion.*^ That statute provided tliat after June 24, 1677, all devises and bequests of any lands or tenements were to be in writ- ing, signed by the testator or by some other in his presence and by his express direction, and to be attested and subscribed by 'three or four credible witnesses. But -wills of persoruaky were left un- affected by this statute.** The English Statute of Frauds, although enacted after New York was a province of England, seems to have been always regarded as in force in New York,*' and it was so treated by the State Legislature in the year 1787. Tlius under the English Statutes of Wills and Frauds all the socage lands in New York were devisable after the year 1664. Old New York Statute of Wills. In 1787 Messrs. Jones and Varick prepared a " Wills Act " for the State which, according to the legislative direction for tlieir revision, embodied in substance the English acts, above referred to as in force in the Province of New York.*" The English statutes expressly gave all persoos ex- cept married women, infants, idiots and persons of non-sane mem- ory, power to dispose of their property (except to bodies politic), including incorporeal as well as corporeal hereditamients.*^ Estates pur autre vie were first made devisable by special enactment of the Statute of Frauds.*^ Bodi of these provisions passed thence into the New York Act of 1787, and into the subsequent revisions of the Wills Act by Kent and RadclifFe in 1801, and by Van Ness and Woodworth in 1813. Thus it will be perceived that up to the enactment of the Revised Statutes of 1830 the old English acts had undergone very little material change. Consequently in all the cases turning upon them before 1830, as it will readily be observed from *3 Bacon Abr. '' Wills and Testa- *5 Fowler's Pers. Prop. Law (2d tnents," D; i Powell on Devises, ed.), pp. 133, 135. The Stat. 29, chap. II; Wadhams v. American Charles II, will be found in the Home Miss. Soc, 12 N. Y. at p. 419. same place. Appendix IV. « I R. L. 364, § 16; Public Admr. *« i J. & V. 93. V. Watts, I Paige, 347; Morrell v. *''34 and 35 Hen. VIII, chap. 5. Dickey, i Johns. Ch. 153. <8 29 Car. II. ^ lo Wills Acts. 53 the old reports of this State, both courts and counsel relied almost entirely on English cases in any exposition of the act of 1787. In other words, up to 1830, the law of New York and the law of England were in substantial accord, in so far as the law concerned wills and testaments.*" The Revised Statutes and the Consolidated Laws. The Revised Statutes made many changes in the old law of wills and testaments, in force in New York, between the years 1664 and 1830.°° The former General Laws of 1896 did not touch or incorporate the portion of the Revised Statutes relating to wills, but left it stand- ing in the unrepealed part of the Revised Statutes. The Consoli- dated Laws of 1909 have, however, repealed and re-enacted the part of the Revised Statutes relating to wills in article 2 of the Decedent Estate Law, which is now in this volume tiie subject of our consideration. Such, in brief, is the history of the statutes of wills and testaments in New York. Statutes Incomplete. A reference to the various statutes of wills, first passed in England, and ultimately adopted and amended in the State of New York, will demonstrate that they presuppose a body of testamentary law. The statutes are singularly incom- plete without reference to some supplementary system. In Eng- land that supplementary system was furnished by the canons, practice, and procedure of the ecclesiastical courts. In New York we must have some reference to the ecclesiastical law of England. The statutes of Henry VIII, re-enacted in New York, ass.uime that a last will and testament is familiar. The Statute of Frauds like- wise re-enacted here prescribes only the ceremonial for execution of wdls of freeholds. The Revised Statutes is only a revision O'f existing statutes with some innovations concerning wills of person- alty. All the statutes taken together regulate merely tihe formal part of the act of testamentation or, in other words, the instru- «The Public Admr. v. Watts, I chap. VI, pt. II, R. S., Appendix T, Paige, 347; Stewart's Ex'r v. Lis- infra. penard, 26 Wend, at p. 297, Brinker- =» Watts v. Public Admr., 4 Wend, hoff V. Remsen, 8 Paige, 488, 491; 168; Hoysradt v. Kingman, 22 N. Jauncey v. Thorne, 2 Barb. Ch. 40, Y. 372, 379. 53 ; preliminary note of revisers with 54 The Decedent Estate Law. § lo ment which embodies the evidence of the last will, ultima voluntas. Of the great subjective difficulties in reaching the legal conclusion that the instrument is the ultima voluntas or last will of decedent the statutes say little. The law of wills is divided into three prin- cipal parts or divisions : I. Legal ability to testamentate ; IL The external form of the instrument of testamentation; IIL The in- ternal form or contents. The Revised Statutes and its present re- enactment, the Decedent Estate Law, contain only outlines of the Whole body of testamentary law, but outlines which are controlling whenever relevant. Section lo of the Decedent Estate Law, now under consideration, is concerned with the first part of testamentary law, the legal ability to testamentate. It is because the law relating to wills is public, rather than pri- vate, law that the State regulates at all this particular act connected with the final devolution of title to property. Other devolutions of title to property are generally left to the oommoti law, and statutes interfere as little as is consistent with an assurance of fair dealing among men. By the Roman law persons lacking in self-conscious- ness and the use of reason {furiosi) could not testamentate : " furiosi nulla voluntas est." ^^ Among " furiosi " were all species of lunatics, persons with corporal infirmities afifecting freedom of the will, and the intoxicated, which possibly included those influ- enced by an unreasonable or intolerable anger. The various stat- utes of England and New York deal only generally with this department of testamentary law. The case law is, however, much more refined. Who May Now Devise by Statute. Section lo of the Dece- dent Estate Law^^ now states wlhat persons may devise. Under tihat section all person's may devise except idiots, persons of un- sound mind, and infants. The permission of the statute is gen^eral ; the exceptions only are specific. It will be found that the early Statute of Wills, Coke, and all early English law dealing with legal capacity, are indebted to the Roman or civil law. Coke de- fines " nan compos mentis." °' 51 Fr. i6, § I ; D. 28, i. 53 Co. on Litt., 247a. 52 Supra, p. so. § 10 Who May Make Wills. 55 " Non Compos Mentis." Persons of uns.ound mind and idiots are naturally incaipable of making a will, and they have never ' been regarded as able to devise. They have been accordingly specially excepted in all the Statutes of Wills in force in this State. Coke says, in substance, that a person of unsound mind is one non compos mentis.^''' Persons non compos mentis in law are: (i) Idiots. (2) He that by sickness, grief or other acci- dent wholly loses his memory and understanding. (3) A lunatic that hath sometimes his understanding and sometimes not, and when he hath it not, be is non compos mentis. (4) Lastly, he that for a time depriveth himself by his own vicious act of his memoiry as he that is drunken. This classification is the basis of modern law on capacity. °° But in a case within Coke's fourth or last class the disability must be proved to be existent at the time of the making of tihe will,°° and in the case of the will of a lunatic the proponent may show that the will was made in a lucid interval.^' The variations, exceptions and applications oif these leading prin- ciples are infinite. They make volumes of reports and of the literature called Medical Jurisprudence. But all such, cases and discussions are addressed, after all, to one leading inquiry: Was the testator in law of sound and disposing mind and memory at the time oi making his will ? •" If a testator has what is termed " sound and disposing mind and memory " it matters not how weak his mind may be,^" or how old ^^ or feeble he may be in health ;'^^ in law he has sufficient capacity excited in Stewart's Exr. v. Lis- 5s Delafield v. Parish, 25 N. Y. 9, penard, 26 Wend. 2SS, 299, 300. 97. 55 Stewart's Exr. v. Lispenard, 26 "9 Stewart's Exr. v. Lispenard, 26 Wend. 2SS (partly overruled, 25 N. Wend. 255. Y. i) ; Blanchard v. Nestle, 3 Dem. 6" Van Alst v. Hunter, 5 Johns. 37. Ch. 148, 158; Weir v. Fitzgerald, 2 66 Gardner v. Gardner, 22 Wend. Bradf. 42; Maverick v. Reynolds, 526; Matter of Jones, 5 Misc. 199; 2 id. 360; Horn v. Pullman, 73 Matter of Halbert, 15 id. 308; N. Y. 269; Matter of Otis' Will, i Matter of Tifft, 55 id. 151; Peck Misc. 258; Matter of Brower, 112 V. Gary, 27 N. Y. 9; Van Wyck v. App. Div. 370. Brasher, 81 N. Y. 260. ^i Van Alst v. Hunter, 5 Johns. Ch. B7 Clark V. Fisher, i Paige, 171; 148, 159. Matter of Taylor, i Edm. 375 ; Mat- ter of Coe, 47 App. Div. 177. 56 The Decedent Estate Law. § 10 to devise.®^ But duress or fraud, of which undue influence is but one species,®^ may vitiate a will, even where the capacity to make a will indubitably exists."* But to make out undue influence in law it is necessary to prove that it was such as to deprive the testator at the time of the free exercise of his will, and not mere importunity or solicitation."' Infants. In Roman law " the impubescent could not testamentate." Section 10 of the Decedent Estate Law precludes infants from devising lands. Under the English Statute of Wills"" it is ex- pressly stated that persons under the age of twenty-one years were restrained from devising their real estate. The statute does not use the term " infant." This disability in respect of wills of real property has continued in substance to the present day in New York."' But males after attaining eighteen years of age and fe- males after sixteen years may now by statute bequeath personal property."^ Blackstone in his brief but compendius remarks on infants or persons within legal age states, that full age in male or female is only a matter of positive law — juris positivi. In this announce- ment he is exact, for a person might be of legal age for one pse some years before he became of legal age for other pur- poses. By the common law a male of twelve years may take the oath of allegiance ; at fourteen he is at years of discretion and may consent to marriage or make a testament of tiis j>ersonal property ; at seventeen he may be an executor, and at twenty-one be is at his own disposal and may alienate his lands, goods and chattels."* So by the common law a female at seven may be betrothed ; at nine she is entitled to dower, at twelve she is at years of maturity, and «2 Brick V. Brick, 66 N. Y. 144. 155 ; Wade v. Holbrook, 2 Redf. «3 Hazard v. Hazard, 5 Sup. Ct. 378; Marx v. McGlynn, 88 N. Y. (T. & C.) 79; Kinne v. Johnson, 60 3S7; Matter of Will of Smith, 95 Barb. 69; Children's Aid Society v. id. 516; Matter of Hall, 68 Misc. 581. Loveridge, 70 N. Y. 387 ; Marx v. 6" 32 Hen. VIII, chap, i ; 34 and McGlynn, 88 id. 357 ; Matter of Will 35 Hen. VIII, chap. 5, § 14. of Smith, 9S id. 516, 522. ^^ Chap. 47, Laws of 1787; i R. L. «* Tyler v. Gardiner, 35 N. Y. SSP; 364; 2 R. S. 56. McLaughlin v. McDevitt, 63 id. 213. "* § 15, Decedent Estate Law. ^ Gardiner v. Gardiner, 34 N. Y. "' Litt., § 104. § 10 Infants. 57 may consent or disagree to a marriage and bequeath her personalty if of good understanding; ait fourteen she may choose a guardian; at seventeen she may be an executrix, and at twenty-one she may dispose of herself and her lands/** It was the oild act for the ex- planation of the Statute of Wills which fixed the legal age of both sexes for the purposes of devising real property at twenty-one/^ and this act was re-enacted in this State in the same language/^ When the revisers of the Revised Statutes caused the old Wills Act of 1787 to be repealed and substituted the original of this sec- tion, they shottld have defined the term " infant " or else have used the language of the former statute, and excepted not infants but persons under twenty-one years of age from the privilege or rig it is to be observed that the rules of that law concerning legaJ capacity and " infancy " vary much and are contradictory/* A person may at common law be an infant for one purpose and not an infant for another/* Legal full age in early times differed with different classes of society and different acts, and persons in the higher class sometimes became of legal age mu'ch after that fixed for the classes below them. The old common law was in this regard full of inconsistencies. As to wills of chattels the com- mon law, influenced by the canonists, finally followed the Roman rule of fourteen for males and twelve for females, and as to de- vises it recognized the custom that in some places those under twenty-one could devise,^'' although as a general rule stated in the old Statute of Wills under twenty-one was the general non-age for making devises, at least in the case of superior tenants. Thus it may be said that by some rules recognized at common law legal- ™i Black. Comm. 463. ecutor (ed. 1589), chap. XVIII, for '1 34 and 35 Hen. VIII, chap. 5. a clear and precise statement of the '^ I J. & V. 93; chap. 47, Laws of different ages of majority for differ- 1787. See above, p. 52. ent acts. ''2 P. & M. 436; Holdsworth, '^Hargrave, note 4; Co. on Litt., Hist. Eng. Law, III, 398. 1116; 5 Con. Dig. 14; Lovelass on 74 See Wentworth, Office of Ex- Wills, 260. 58 The Decedent Estate Law. § 10 age for purposes of devising lands was under twenty-onie.'^'' It was for this reason, no doubt, that both Littleton and the old Statute of Wills do not ordiniarily use tlie term " infant " to denote those under tiwenty-one, but they generally are at pains to sipeciify the number of years required for a particular legal caspadtyJ'' As deeds or conveyances of land generally required the grantor to be up»ward of twenty-one years of age, the Statute of Wills made the legal full age for devises twenty-one. Thus the term " infant " at common law is inexact. It is true that Coke in his Commentary on Littleton says that one under twenityone is an " infant." But this is the very point which the common' law had not then held, and Coke measurably begs the very question at issue. There are no doubt later autliorities which hold that under par- ticular circumstances the term " infant " may designate a person of either sex tmder twenty-one. It has been held by the General Term of the Supreme Court of this State, for example, that the Married Woman's Act of 1848 did not enable her, if an infant, to devise, and this decision is thus far constructive of this section of the Revised Statutes." The decision is not altogether satisfactory, as it assumes the very point in issue. The Domestic Relations Law does define a " minor " as one under twenty-one years, but the definition of that term is only for the purposes of that particular act." It was doubtless because of the uncertainty at common law as to legal full age*" that the old pleaders in certain cases generally alleged an act or deed of one under twenty-one as the act or deed of " an infant under twenty-one years of age,'' provided the act or deed required full age for a coinpetent execution. '6Y. B. 12, 13, ed. in (R. S.) "§ 259, Littleton; " Et est assa- 236: In answer to a plea that the voir que quant il est dit que malez usage of Hereford was that a man ou femelx sont en pleyn age, ceo could sell his lands when he could serra entendus del age de XXI ans." measure an ell and count up to I2d., '* Zimmerman v. Schoenfeldt, 3 Shardowe, J., said " The usage is Hun, 692. Cf. Seiter v. Straub, i contrary to law for one person is Dem. 264. Hamn v. Prudential In- twenty years old before he knows surance Co., 137 App. Div. 504. how to measure an ell and another '' Chap. 14, Consolidated Laws, knows how when he is seven years *' See Bacon Abr., tit. " Infancy old." and Age." § lo Coverture. 59 It is, however, certain that no one of greater age than twenty-one is an infant for the purpose of capacity to devise. Doubtless if the case were to arise in this State under this section of this act the term " iiifant " in such section would be held to mean a person, male or female, under twenty-one years of age. But as there are some very subtle questions at common law as to the legal compe- tency of some persons to devise in some circumstances under that age, we have been at pains to point out that the revisers of the Revised Statues should not have changed the language of the old Statute O'f Wills from " under twenty-one years O'f age " to " in- fant," although the revisers obviously believed that in law an " in- fant " was a person under that age. Such was not, however, always the case. Coverture. The Revised Statutes, it will be observed, originally excepted married women from the persons entitled to devise lands. *^ This accorded with the old Statutes of Wills, whicb, in conformit}' with the common lasw, also excepted them. At common law a mar- ried woman's legal identity finally was held 'to be merged in that of her huishand.*^ Her legal status was to this extent colored by *he conception of tlhe canonists, who made the husband and wife one flesh. *^ This conception was expressed by the common law- yers as the " legal unity " of husband and wife, she being sub potestate viri, or under the power of her husband. It was said at common law she could not devise.** But like all general state- ments colored by the language of the civil law the case-laiw of Eng- land made many exceptions in regard to the status and the powers of married women, and the cases alone can guide us in any in- volved inquiry. But it is unnecessary for us to dwell on her power to devise at common law, as the Married Woman's Acts^^ in this State and a subsequent amendment of the Revised Statutes*^ gaive married women full power and authority to devise their lands as if they were femes sole. Her authority is now both plenary and ^1 See above, p. 50. *^ Beginning with chap. 200. Laws 82 1 Roper, Husband and Wife, of 1848, and see Fowler's Real Prop. 52; I Macqueen, Husband and Wife, Law (3d ed.), 607 for other acts. 27; I J. & V. 93. 86 Chap. 782, Laws of 1867; Wad- ss See 3 Holdsworth, H. C. L., 404. hams v. American Home Miss. Soc, 8*2 Black. Comm. 497. 12 N. Y. 415. 6o The Decedent Estate Law. lO complete, and she may dispose of her personalty by will as well as of her realty.*' Persons Civilly Dead. Persons condeixined to life imprisonment are now civilly dead and would, therefore, seem to be inicompetent to devise their lands."* In like manner by the Roman law a loss of status or freedom, capitis deminutio, invalidated a will. Joint Tenants. Joint tenants were not mentioned in the old Statute of Wills^" because the nature of their estate is such that the event which gives a will effect at the same mioment destroys or ends their estate.^" But persons holding as joint tenants cannot devise under this statute only in the sense that the devise would be inoperative in law. Joint tenants no longer labor under any personal disability to devise, and a joint tenant who has sought partition may now perhaps devise even before actual partition, at least if the will be executed after a decree to partition, for equity considers that as done which ought to be done. "See § IS, Decedent Estate Law; no N. Y. 317, and see below, text chap. 782, Laws of 1867. Cf. Val- under § 15 of this act. lance v. Bush, 28 Barb. 633, 643; ^932 Hen. VIII, chap, i; 34 and Lush V. Alburtus, i Bradf. 456. 35 Hen. VIII, chap. S; chap. 47, 88 2 R. S. 701, § 20, now § Sii, N. Y. Laws of 1787. Penal Law; Platner v. Sherwood, s'Litt., § 287; Co. on Litt., 185a- 6 Johns. Ch, 118; Avery v. Everett, Powell on Devises (ed. 1838) 143. § II What Devisable. 6i § 11. What real property may be devised. Every estate and interest in real property descendible to heirs may be so devised. Formerly 2 R. S. 57, % 2: § 2. Every estate and interest in real property descendible to heirs may be so devised, "i Comment. This section of the "Real Property Law did not es- sentially change the corresponding section of the Revised Statutes from which it was taken. Nor did the Revised Statutes materially alter the prior Statute of Wills, originally enacted in New York in 1787, and which we have seen^^ was a mere re-enactment of the old English Statute of Wills (32 and 34 Hen. VIII) as modi- fied by the Statute of Frauds."' The statute of 1787 permitted " any person having an estate of inheritance either in severalty, in coparcenary, or in common in any lands, tenements or heredita- ments or any part thereof or of any rent or profit out of the same to devise the same." "* This is practically a re-enactment of the English Statute of Wills. We have seen in the introduction that the Statute of Wills (32 and 34 Hen. VIII) made a new point of departure for lawyers and that it is convenient, in any event- to defer to it in practice and to ascribe the modem power to devise wholly to the statute. It will be observed, as mentionied before under the prior section, that j'oint tenants were excepted out of the old statutes."'^ What May Pass by Devise. The reader will notice that this statute, in conformity with the development indicatedi in the intro- duction, continues to treat devises or wills of land apart from tes- taments or wills of personalty."" This section now under consid- eration presupposes a disposing title in the testator. It relates only to devises or wills of the testator's landed property. Under the odd Statute of Wills it was at first thought that all contingent 51 Repealed by Decedent Estate '» Supra, p. 60. Law of 1909. See below, § 130. '^ §§ 10-14 relate to devises of 82 See above, under § 10, pp. 50-52. lands; §§15 and 16 to testaments by 5329 Car. II, chap. 3. personalty. 8*2 R. L. 364. 62 The Decedent Estate Law. _ § ii interests in lands resting in mere possibility were incapable before vesting of passing by a will. But this doubt was soon set at rest in England by the decision in Selwyn v. Selwyn to the contrary ,°^ and the Revised Statutes especially provided for it so as to con- firm the decisions thait contingent remainders generally do pass by devise.^* Estates pur autre vie were made devisable in England by the Statute of Frauds, repeated in the New York " Wills Act " of i787.°» At common law and under the old Statute of 'Wills " lands," "tenements," and " hereditajments " might be devised. These were very comprehensive terms.^ " Hereditaments " is the most com- prehensive term of all,^ including rents and whatever may be in- herited.'' It seems before the Revised Statutes rents might not pass under the term " lands " alone.* The Revised Statutes only translated the term " hereditaments '' and under the Revised Statutes and this section " whatever may descend, * * * or pass by de- scent, may be devised." This has been in substance the rule ever since the old Statute of Wills.^ Property held by joint tenants was expressly not devisable under the old Statute of Wills. Such property cannot now descend, and, therefore, it remains undevisable under this section of the present statute.^ Estate and Interest in Real Property. The quality of passing by descent to heirs-at-law is, as we have seen above, the primary test of devisability.' But only " estates " and " interests " in " real property " so pass. These are distinctly terms of the common law, ^ I Blacks. 222. 2 Canfield v. Ford, 28 Barb. 336 ; '* I R. S. 725, § 35 now § 59, Real Main v. Green, 32 Barb. 448. Prop. Law. 3 Hunter v. Hunter, 17 Barb. 25. '*' See § 30, Fowler's Real Prop. * Harrington v. Budd,, 5 Den. 3211. Law (3d ed.), p. 154. sjongg y. Roe, 3 T. R. 88. 1 See Fowler's Real Prop. Law ^ 2 R. S. 57, § 2, now § 11, and (3d ed.), pp. 93, 152; Pondv. Bergh, see supra, p. 60. 10 Paige, 140 ; Bradner v. Faulkner, '' Supra, p. 61. 34 N. Y. 347. § II What Devisable. 63 where they loom large.* At common law everything which is not real property is personal property. Therefore, for historic reasons, chattels real, as they do not 'pass to heirs-at-law, are personal prop- erty.'' But as chattels real now pass by bequest as contradistiniguished from devise the differentia are, however, in tliis respect slight in ■ present practice between chattels real and real estates.^" The term " property " in law denote:s a bundle or aggregation of rights in and over things {res, such as land, movables, and things in action) which the common and statute law recognize, protect, and enforce. This important term " property " is nowhere defined by a statute of this State.^^ " Real property " as employed in this section is defined as co- extensive with lands, tenements, and hereditaments, corporeal and incorporeal.^^ This section refers only to existing estates and interests in real property which may be disiposed of and are owned by testator and which pass by descent to his heirs. The section has no reference to limitations of derivative or future estates by the testator. Such limitations are now governed by the Real Property Law oi 1909.^^ A testator may limi't by devise life estates, although they are not descendible to heirs, and such has been the construction under all the Statutes of Wills in force at any time in this State. Estates for years which are chattels real are not descendible to heirs, but they may be bequeathed as personalty under section 15 of this act. Remainders. Vested remainders may pass by devise,^* unless possibly they are those anomalous " vested remainders " which " open to let in," when they are devisable only subject to the con- dition contained in 'the original limitation.^^ 8 Powler's' Real Prop. Law (3d ^^ Chap. 50, Consolidated Laws, ed.), pp. 1417, 369; Upington v. Cor- "Lewis v. Howe, 64 App. Div. rigan, iji N. Y. at p. 148. 572, 578, affd., 174 N. Y. 340; Ham 'Fowler's Pers. Prop. Law (2d v. Van Orden, 84 N. Y. 257, 270; ed.) 3, 14, 16. Rothschild v. SchifF, 188 id. 327, 333. 1" See § IS, infra. ^ Byrnes v. Stilwell, 103 N. Y. 11 Fowler's Real Prop. Law (3d 453, 461 ; Lyons v. Ostrander, 167 ed.) ; Fowler's Pers. Prop. Law (2d id. 135. ed.), 14. 12 § 2, Real Prop. Law ; § 40, Gen- eral Construction Law. 64 The Decedent Estate Law. §11 Contingent Remainders. Contingent remainders are now devis- able^" unless the contingency is such thg,t the death of the devisee during the particular estate will defeat his interest or estate.^^ Reversions. Reversions, although classified with expectant es- tates from the point of view of possession, are always vested in interest, and are consequently devisable.^* Possibility of Reverter. As mere possibilities of reverter are important only wihen they carry a right of entry to a definite person we may assume that a possibility of reverter is devisable only when a right of entry is devisable.^'' Right of Entry. A right to enter or re-enter on land is a tech- nical right of great antiquity and it may arise in different ways, by covenant, reservation, disseisin, or by grant or lease. A mere right of re-entry vras not devisable under the old Statute of Wills,^" and, in some cases, it is not devisable under the present statute. For example, it seems that such a right when it is incidental to a mere possibility of reverter reserved on a grant in fee still does not pass by either descent or devise.-^ But it is to be noticed that the language of the court in Upington v. Corrigan slightly con- flicts witlh' that of the decision in Van Rensselaer v. Ball,^^ allth'OUgh a statute oi 1805 was 'there involved. But it seems that neverthe- less a right of entry on lands adversely possessed may in this State be devised.^' The intention of the revisers of the Revisedi ' Statutes was to make everything which is inheritable .also devisable.^* In " § 59, Real Prop. Law ; Matter ^i Countryman v. Deck, 13 Abb. of Lauter' v. Hirsch, 67 Misc. 165. N. C. no, 112; NicoU v. New York 17 Paget V. Melcher, 156 N. Y. & Erie R. R. Co., 12 N. Y. 121, 131 ; 399; Stringer v. Barker, no App. Upington v. Corrigan, 151 id. 143. Div. 37 ; Schell v. Carpenter, 50 22 jg n y. 100, 104, 105. Misc. 400. 23 Jackson v. Varick, 7 Cow. 238; 18 Vanderheyden v. Crandall, 2 s. c, again in Ct. of Errors, 2 Wend. Den. 9, 23; N. Y. Life & Trust Co. 166; Upington v. Corrigan, 151 N. V. Cary, 191 N. Y. 33, 40. Y. at p. 132. IS See next paragraph. 2* See below. Reviser's note i, Ap- 20Goodright v. Forrister, 8 East. pendix. I. 552 ; Leake on Property in Land (2d ed.), 43. § II What Devisable. 65 other ■words, " inheritability " was intended for the future to con- trol devisability. If a right of entry passes by descent to heirs it is doubtless now devisable under this section.-' 25 /Kl*-,' Rents. Rents reserved on perpetual grants in fee are heredita- ments and may pass by devise.^" Rents reserved on leases or demises for years made by the owner of the fee, if accruing after landlord's death, follow the re- version, or, in other words, if otherwise undisposed of, pass to the heir-at-law; but if such rents have accrued before the landlord's death, then they do not go to the heir, but belong to the executor or administrator in the absence of other or testamientary disposi- tion.^^ If tenants for life or years make an underlease the rent, accruing on the underlease after his death, does not belong to his heir, but to his executor or admini-straitor, in the absence of any other ex- press disposition.-^ Beneficial Interests Under a Trust. The beneficiary of an ex- press trust since the Revised Statutes can have no equitable estate; be has a mere right in re^^ and a right to accumulatioin'S or accrued inioome, which may pasis as personalty by will even though the sub- ject-matter of the trust is land. His right as beneficiary oi an ex- press trust is not now devisable as it does not descend. But where a testator has entered into a contract to purdhase lands the vendor is then regarded as a constructive trustee for such purchaser, and the devisee of such a purchaser may take under a general, a residuary, or a specific devise and enforce the purchase.^" 26 See also under § 60, Fowler's 27 Bacon Abr., tit. Executors and Real Prop. Law (.3d ed.). PP. 374. Administrators, H. 3; Fowler's Real .•?i7S. Prop. Law, p. 211; §§ 27- 2720, 26 Hunter v. Hunter, 17 Barb. 25 ; Code Civ. Proc. Main v. Green, 32 id. 448; 33 id. 28\Yiiiiams on Executors, 584; 136, and see Fowler's Real Prop. § 2712, Code Civ. Proc. Law (3d ed.), p. iQo; Van Rens- ^9 See § 96, Fowler's Real Prop, selaer v. Hays, 19 N. Y. 68; Cruger Law (3d ed.), 442. V. McLaury, 41 id. 209, 222. 3° Malin v. Malin, i Wend. 625. 66 The Decedent Estate Law. § ii Property Acquired Subsequently to Execution of Will. At common laiw, as a general rule, property acquired subsequently to the execution of the will did not pass under it.^^ The Revised Stat- utes first changed this rule of construction so that it now does .pass under a prior general devise or under a prior residuary clause, as the case may be.^^ At common law subsequently to the Statute of Willis a devise was regarded as a mere conveyance by way of appointment to uses of particular land to a particular devisee.^' The Revised Statutes reversed this rule and conformed the law relative to devises to the law regulating testamentary dispositions of personalty, where the v/ill spoke as of testator's death.^* Perpetuities. Although all real property desicendible to heirs may now be devised generally, yet the devise itself must airways be in conformity with the existing statutory rules regulating the creation and division of estates,^^ for the transmission, of an estate by devise, although in reality a mere succession to an existing estate, falls under that article. The principal restriction contained in that article is wbat is known as the Rule Against Perpetuities.'^ What devises are void because they create a perpetuity will be reserved for subsequent consideration under section 21 of this act, although the subject is more closely allied to the Real Property Law in which the rule in this State is contained.'^ 31 Holt, 236, 248 ; Root V. Stuyves- 36 Art. 3, Real Prop. Law ; chap, ant, 18 Wend. 257; Jackson ex dem., 5°. Consol. Laws of 1909. etc. V. Potter, 9 Johns. 312. 36 Kalish v. Kalish, 166 N. Y. 368, 3^2 R. S. 57, § 5, now § 14, infra; 372. No other citation is needed as Byrnes v. Baer, 86 N. Y. 210; the statute controls — what is a per- Rogers v. Casey, 18 Week. Dig. 71 ; petuity and when a devise contra- Hodgkins v. Hodgkins, 123 App. venes the rule against perpetuities is Div. no, and see below, under § 14. a different proposition and one of 33 Lord Mansfield in Harewood v. great nicety. Goodright, Cowp. 90; Markby, Ele- 37 See § 42, Real Prop. Law of ments of Law, §§ 580, 581. 1909. 3 Laws of 1897, now § 10, Real '6 Chap. IIS, Laws of 184S; Prop. Law; Smith v. Reilly, 31 Misc. amended, chap. 261, Laws of 1874; i 701, 7o App. Div. 286. R. S. 720, § IS; Hall v. Hall, 81 N. so § 640, chap, so, Consol. Laws. Y. 130; cf. Marx v. McGlynn, 88 id. si Became a law May 19, 1897, 2,7(i; chap. 207, Laws of 1893; § 12, with the approval of the governor. Real Prop. Law; chap. 38, Laws of 74 The Decedent Estate Law. § 13 as re-enacted, operated to give capacity to take, hoid and convey real property within this State to a large proportion of the world's population, and consequently essentially altered the laiw which for- bade aliens from taking and holding real property in this State. The effect of this recent act is to make it most clear that all the subjects of Great Britain or most other European States*^ have the capacity of citizens in respect of real property within this juris- diction.®^ In some cases treaties bad already conferred such rights on foreigners,** and then this act of 1897, as now re-enacted, was declaratory only. But where a treaty does not confer the right, and a foreign State does permit Americans to take real property within its territory, then its citizens may take and hold in New York under such act alone. Porto Ricans and Filipinos. At the present time, citizens of the newly annexed insular provinces of Porto Rico and the Philippine Islands occupy a peculiar status. They are neither citizens nor alliens, but are under the protection of the United States.®^ But they may be naturalized.*" They undoubtedly may take by devise under section 10 of the Real Property Law of 1909. Hawaiians. By act of Congress of April 30, 1900,*'' the citizens of the Republic of Hawaii on the 12th day of August, 1898, were made citizens of the United States. Naturalization in Hawaii is controlled by act of Congress of June 29, 1906.*^ Subject Populations. The citizens of any country annexed to the United States, as they then owe permanent allegiance to the United States, may become citizens of the United States by naturalization.*' *2 See as to France, Geofroy v. States," passim, and Gonzales v. Wil- Riggs, 133 U. S. 258. See as to Hams, Immigration Commissioner, England, Haley v. Sheridan, 190 N. 192 U. S. i ; Richmond v. People of Y. 331. Porto Rico, 51 Misc. 202. 85 Fay V. Taylor, 31 Misc. 32; ^e § 30, 34 U. S. Stats, at Large, Haley v. Sheridan, 46 id. 506, modi- p. 606. fied, 107 App. Div. 17; 114 id. 903; ^''31 U. S. Stats, at Large, 141. 190 N. Y. 331. 88 34 U. S. Stats, at Large, 596; 8* Geofroy v. Riggs, 133 U. S. 258. United States v. Rodiek, 162 Fed. 85 See Fowler's Real Prop. Law Rep. 469. (3d ed.) p. IIS, and consult Van 89 § 30, 34 U. S. Stats, at Large, Dyne, " Citizenship of the United 606. § 13 Aliens. 75 Without naturalization they would appear to have capacity to take real property by devise under section 10 of the Real Property Law. Devises to Citizens in Trust for the Benefit of Aliens. A devise to a citizen trustee for the benefit of aliens where the trustee takes the legal title, and an immediate conversion into personalty is directed is not unlawful, for the original disability at common law relates to the person actu^ally seised of land and not to the beneficiary of an active trust."" But if the trust is now an exipress trust, and it must be such when the trustee takes the legal title to hold on trusts and to pay over to alien beneficiaries, the ahen beneficiary would have nothing but his accumulations to dispose of,^'- without he also takes a vested remainder .which is in itself subject to section 13 of this act, tmless the beneficiary oomes within the purview of section 10 of the Real Property Law, when both the limitation in trust and that in remainder are ncnw completely validated. ^^ 9" Marx V. McGlynn, 88 N. Y. 92 § 10^ chap. 50, Consol. Laws ; 357, 376. Cf. Parker v. Linden, 113 Hayden v. Sugden, 48 Misc. 108, id. 28, 37. 122. siBeekman v. Bonsor, 23 N. Y. 298, 316 ; Wainwright v. Low, 132 id. 313. 319- 76 The Decedent Estate Law. § 14 § 14. Wills of real estate, how construed. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death. Formerly 2 R. S. S7, § S : § S. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.'^ Comment. The revisers of tlie Revised Statutes in a note on the original of this section stated with their usmal clearness and precision the rules of the common law which they desired to change.'* There was before the year 1830, by the irules of the common law adopted in this State, a remarkable difference between a bequest of personal estate and a devise of real estate. The foirmer operated to pass whatever the testator died possessed of, whereas the latter operated only on such reail property as he was seised of at the time of the execution of his will.'^ A devise, as stated in the introduction,"'' being regarded as a conveyance and as specific was, after the Statute of Wills, confined to particular property; ■whereas an appointment of an executor of personalty was an in- definite disposition, founded on soine remote theory of the civil law, that the executor stood in the place of the deceased -and was the universal successor.'^ Since the Revised Statutes every vdll speaks as of the time of testator's death, whether it refers to real estate or to personal property."* Real estate .acquired after the S3 Repealed by Decedent Estate 96 Pp. 26, 48, supra. Law of 1909. See below, § 130. "Lovelass on Wills (ed. 1839), ^* See below, note 4, Appendix II. 245 ; Parker v. Bogardus, 5 N. Y. 95 Jackson ex dem. Rogers v. Pot- 309, 311; Byrnes v. Baer, 86 id. 210, ter, 9 Johns. 312; Pond v. Bergh, 216. 10 Paige, 140, 149; Dodge v. Galla- 98 Youngs v. Youngs, 45 N. Y. tin, 130 N. Y. 117. 254, 257. § 14 Wills, how Construed. 77 making of the will is, therefore, ordinarily considered as passing under a general devise, or under the residuary clause,'"' unless there is something to indicate another intent on the part of the testator ; the actual intent being always controllinig in cases on wills.^ S9 Lynes v. Townsend, 33 N. Y. 1 Quinn v. Hardenbrook, S4 N. Y. SS8; Lent v. Lent, 24 Hun, 436; 83; Byrnes v. Baer, 86 id. 210; Hodgkins v. Hodgkins, 123 App. Cruikshank v. Home for the Friend- Div. no; Toher v. Crounse, 57 less, 113 id. 337, 353, 354; Schuck v. Misc. 252, 260. See under § 93, De- Shook, 24 Abb. N. C. 463- cedent Estate Law, 78 The Decedent Estate Law. § 15 § 15. Who may make wills of personal estate. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing. Formerly 2 R. S. 60, § 21 : § 21. Every male person of the age of eighteen years, or upwards, and every female not being a married woman, of the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and be- queath his or her personal estate, by will in writing.^ Comment. Dispositions of personal property by a last will or testament have been continously recognized in the law of England from the earliest periods.^ It was, however, the ecclesiastical law Which in mediaeval times regulated testamentary powers in Eng- land.* The ecclesiastical laiw adopted the rule of the Roman law which allowed males of fourteen years of age and femailes of twelve to dispose by last will or testament." But in particular localities in England the periods of non-age and full age for testaan'cntary purposes greatly varied.® In the introduction we emphasized for the purposes of future illustration the diflferenice in law between " wills " and " testamients." It was the Statute of Wills (32, 34, 35 Hen. VIII) which first made twenty-one a minimum age for devises of lands. The great uncertainty concerning the age which the common law regarded as legal full age for making wills or bequests of per- sonalty is clearly shown by the note of Mr. Hargrave to Coke on Littleton' (referred to by the revisers of the Revised Statutes) and by Wood's Institutes of the Laiws of England.^ According to 2 Amended so as to enable mar- ^2 Black. Comm. 497. ried women to make wills of per- 6 Williams on Executors, 13. sonalty by chap. 200, Laws of 1848; « 2 P. & M. 436; Holdsworth, Hist, chap. 375, Laws of 1849; chap. 782, Eng. Law. Laws of 1867 and all repealed by ''Note 6 to Co. on Litt. 896; Domestic Relations Law of 1896 and Wood's Institutes (ed. 1772), 309. 1909, and by Decedent Estate Law « See below, note S, Appendix I. of 1909. See below, § 130. 3 Williams on Executors, i; i Black. Comm. 491. § 15 Who May Bequeath. 79 generally received opinion in the eighteenth century the common law finally, as the competent age for wills of personalty, fixed upon fourteen years for males and twelve for females." The revisers of the Revised Statutes proposed to express this latest version of the common law in the Revised Statutes and to fix the ages at twelve and fourteen respectively. But the Legislature thought these periods too immature and fixed eighteen for males and sixteen for females as the minimum competent ages for wills of personality, and so the statute now stands. Every male person of eighteen and upward and every female of the age of sixteen and upward of sound under- standing and memory may bequeath his or her personal property.^" Persons Above Sixteen and Under Twenty-one Years. It will be observed that this section of the Decedent Estate Laiw, repeating the Revised Statutes, expressly requires all testators- of personalty to be of sound mind and memory. This expression, though gen- eral in application, was probably in deference to the common law, which had been very careful to investigate the capacity of particu- lar testators when they were below the age of twenty-one years, even though they were presumptively competent by laiw for such an act at a lesser age." Notwithstanding the Married Women's Enabling Acts of this State^- a feme covert if under sixteen yeans of age (the age pre- scribed in this section) cannot make a will of personalty.^^ The capacity to bequeath must exist at the time of making the will and the attaining of a subsequent capacity before death will not rectify an original incapacity without a republication.^* In computing the testator's age the day of his birth is to be reckoned inclusively,^^ and although the age fixed for the testamentary act is oompleted only on the day on which it is performed.^" 3 2 Black. Comm. 497; Lovelass on is Zimmerman v. Schoenfeld, 3 Wills (ed. 1839), 260. Hun, 692. 1" Matter of Bolton, 159 N. Y. 129. 1* i Plow. 343. 11 2 Vern. 469 ; Seiter v. Straub, ^^ j Black. Comm. 463. I Dem. 264. "i Salk. 44; Swinb., pt. II, § 2. 12 § 51, Domestic Relations Law; chap. 14, Consol. Laws, repealing and consolidating all former acts. 8o The Decedent Estate Law. § 15 Wills May be Void as to Realty and Yet Valid as to Person- alty. It will be perceived that as the present statute fixes full age, or twenty-one, for a capajcity to make wills of realty and eighteen for males and sixteen for females in resipect of wills of personalty a will made by one under majority may now be valid as to his or her personal property and void as to his or her devises of real property.^'' Since 1837 this anomaly no longer exists in Eng- land, as by a statute of that year no one under twenty-one years of age is competent to make a will of either real or personal pirop- erty.^* It is a question, whether the same uniformity of ages would not be desirable in this State for many reasons. Competency of Persons Under Twenty-one to Bequeath. We have seen that while some persons under twenty-one years of age are not incompetent by law to make a will of personalty, yet that the old law exercised a particular scrutiny as to their competent understamding of such act." It was no doubt in deference to this practice that the revisers of the Revised Statutes in the original of this section qualified the ages by the expression of " sound mind and memory," meaning thereby particularly to refer to infant tes- tators.^" In other words, the law intended to require more pre- cise proof of " sound mind and memory " when the willsi of infants are offered for probate. Certainly the qualification in this section may be contrasted with the language of section 10 of this act, which seems to demand prima facie proof of a lesser degree of under- standing on the part of devisors of full age.^^ If the distinction just pointed out is a sound one it is highly incumbent on the pro- fessional mian to employ extra care in the execution and forma- tion attending wills of personalty made by minors. In all events there can be no harm in doing so. When Devise Void and Bequest Valid No Election Required. Where a will is void as to real estate by reason of infancy of tes- tator, but good as to personalty, the person disentitled to the real " Horton v. McCoy, 47 N. Y. 21, 20 ggg § jj^ Decedent Estate Law. 28 ; Wells V. Seeley, 47 Hun, 109. 21 See Matter of the Probate of 18 1 Vict., chap. 26, § 7. Forman's Will, 54 Barb. 247 ; Seiter '^^ Supra, p. 79. V. Straub, i Dem. 264. § 15 Who May Bequeath. 8i estate is not put to his election by reason of an inconsistent pro- vision made for him out of the personalty.^^ Land sold under a peremptory power of sale is personalty and an infant of the statutory age may bequeath the same.''^ Married Women. Although formerly as a general rule of law a married woman could not bequeath her chattels, as they became her husband's on her marriage, yet with the consent of her hus- band slie could even at common law make a testamentary bequest of her personal estate, or some part of it, and if the husband did not revoke his consent before its probate such testamenit stood as her act.''* But it was held that the Revised Statutes impliedly ex- cepted a married woman from making a will of personalty and deprived her of even this limited power which in this respect she enjoyed at commion law.^^ If this departure of the revisers from the com'mon law was intentional, which is doubted, it was a step in the wrong direction.^'^ Chapter 782, Laws of 1867, in any event corrected it, amended the Revised Statutes, and gave to married women power to bequeath all their personal estate; other acts of this State then having made it their separate property^^ free of any rights or dominion of the husband. At present an infant wife of over sixteen may make a valid disposition of her personalty by will>« Persons Civilly Dead Cannot Bequeath. Persons condemned to perpetual imprisonment, it seems, are by statute civilly dead.^' Civil death certainly implies incompetency to do any civil act, al- though the Legislature cannot now pass a bill of attainder, which was to some extent the foundation of a like incapacity to devise 22 Hearle v. Greenbank, 3 Atk. 26 Strong v. Wilkin, i Barb. Ch. 695; I Ves. Sr. 298. 9; Moehring v. Mitchell, Id. 64. 23Horton v. McCoy, 47 N. Y. 21, 2':§§ 50, 51, Domestic Relations and see Matter of McMillan, 126 Law; chap. 14, Consol. Laws, con- App. Div. 155. solidating all former laws. 2* 2 Black. Comm. 497, and see un- 28 Matter of Bolton, 159 N. Y. der § 100, Decedent Estate Law. 129, 133. 25Wadhatns v. The American 293 R. S. 701, § 20; § Sii, Penal Home Miss. Soc, 12 N. Y. 415 ; Val- Law ; § 6, Domestic Relations Law ; lance v. Bausch, 28 Barb. 633, O43. Avery v. Everett, no N. Y. 317. 6 82 The Decedent Estate Law. § 15 lands at common law.^" But besides attaint there was a larger common-law rule that a conviction for crime operated as a for- feiture of goods and chattels to the king or some feudal superior, and, therefore, that a felon had nothing to bequeath.'^ Neither attaint nor forfeiture for conviction of felony prevail longer in this State, but yet it seems if a person sientenced to prison for life is civilly dead he is inoomipetent to do any civil act and cannot make a bequest of his personal estate.'^ Aliens May Bequeath. Aliens could at common law bequeath their personal property (chattels real possibly excepted) provided they were alien friends whose country was at peace with England.^* This ipart of the common law was formally translated here, and is still operative as a part of the common law of this State.^* There is no doubt that by the common law in force in this State alien friends in time of peace may bequeath to other aliens or to citizens their personal property. Rights of Alien Beneficiaries in Trusts of Lands. As the in- competency of aliens to take and hold real property related to sieisin at common law, a citizen may hold lands in trust for aliens, for it is a citizen who has then the legal title, .and the right of the bene- ficiary is, since the Revised Statutes, a mere right to enforce the trust.^^ It would, therefore, seem that the interest of the alien beneficiary in such a trust if alienable could be bequeathed by him were it not for the present Statute of Uses and Trusts which con- trols the legal title to lands held in trust and the rights of benefi- ciaries. This casts some doubt on this point.°° Alien if Nonresident May Not be Made Executor. At com- mon law an alien friend could serve as an exeoutor,^^ and such 3« Lovelass on Wills, (ed. 1839) S5 Marx v. McGlynn, 88 N. Y. 357, 271. 376. See above, p. 75 ; cf. 2 Kent 31 Lovelass on Wills, 271, 272; 4 Comm. 62, and cases cited Fowler's Black. Comm. 381, 385, 386; Plainer Real Prop. Law (3d ed.) 129. V. Sherwood, 6 Johns. Ch. 118. s'Beekniati v. Bonsor, 23 N. Y. 32 See Avery v. Everett, no N. Y. 298, 316; Wainwright v. Low, 132 317. id. 313, 319. 33 1 Black. Comm. 372 ; Co. on 37 Williams on Executors, 126 ; 4 Litt. 26 Kent Comm. 518. 3* Bradwell v. Weeks, 16 Johns, i ; Meakings v. Cromwell, S N. Y. 136. § 15 Who May Bequeath. 83 was the law of this State prior to the Revised Statutes, which, in revising thie law relating to probate proceedings, provided that no nonresident alien who had not taken steps to be naturalized should be competent to serve as an executor.^* This provision was soon amended in 1830^" so as to provide as at present*" that an alien not an inhabitant of this State should be incompetent to serve as an executor. 38 2 R. S. 69, § 3. " § 2612, Code Civ. Proc. 39 Chap. 320. ^4 The Decedent Estate Law. § i6 § 16. Unwritten wills of personal property, when allowed. No nuncupative or unwritten will, bequeathing personal es- tate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea. Formerly 2 R. S. 60, § 22 : § 22. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea.^i Comment. Ey the early law -of England it was established that a nuncupative, or oral, will before witnesses -was comii>etent to pass goods -aifd Chattels, at least if the will named an executor;*^ but only provided that the testator was in extremis, or as one of the most authoritative of the old books puts it: "When the testator languishing, for fear of sudden death, dares not wait for the writing of his testament; and therefore prays his curate, and others his neighbors, to bear witness of his last will, and declares by words what his last will is. And such will is as strong as a testament or will in writing and sealed with the seal of the testator; except in special cases." *^ Such were some of the legal qualifications regarding nuncu- p.ative -testaments made by the Counts Christian before the reign of Heruy VIII. These recognized canons were mere Teflections of certain principles recognized -by the civilians, who, with their cus- tomary refinement, did not require impossible conditions of -tes- tators under exceptional circumstances. The civil law permitted soldiers, persons in rural districts, -and those laboring under conta- gious diseases, to make informal oral wills without writing. Like principles prevail-ed in the Courts Christian in England. The Statute of Frauds (29 Car. II, chap. 3)** regulated the exe- cution of all future wills in England and it is assumed to have laid the execution of nuncupative wills under great restrictions.*' *i Repealed by Decedent Estate *^ 4 and s, Ann. c. 16. Law of 1909. See below, § 130. "2 Black. Comm. 500; 4 Kent. «2 P. & M., H. E. L. 335. Comm. 517; Jarman on Wills (ed. *3 Perkins' Profitable Biook {regno 1849) 89. Hen. VIII), § 476; Prince v. Hazle- ton, 20 Johns. 502. § i6 Nuncupative Wills. • 85 But an attentive consideration of the nineteenth and twenty-third ■sections of that statute would seem to show that they were not •greatly inconsistent with the prior law, and, besides, that statute specially excepted, as did the old law, soldiers and mariners. All the clauses of the Statute of Frauds were re-enacted in this State in tlie Wills Act of 1787, together with the other English statutes then re-enacted here,*" and they continued in force until the pro- visions of the Revised Statutes took their place. The English Statute of Frauds (29 Car. II), having been en- acted after New York had been made a dependency of England, was constitutionally and legally not in force in the Province of New York.*' But nevertheless by common consent the statute seems under the colonial government to have been acted on, and it was ultimately adopted, ratified, and regularly made a part of the law of New York.** The nineteenth section of the English statute was re-enacted in the fourteenth section of the New York Wills Act of 1787*^ and provided thai no nuncupative will should be good where the estate exceeded seventy-five dollars ( in England 30 pounds sterling), unless made in a last sickness and proved by the oath of three witnesses present at the making of it. The Statute of Fra-uds^ excepted nuncupative wills of soldiers in active service and mariners, while at sea, and this exception also appeared in the New York re- 'enactment.'" The English Act, 4 and 5 Anne, chap. 16, was enacted in Eng- land to explain the qualifications of witnesses to a nuncupative will, and it declared that such as are good witnesses at common law .should be deemed comspetient.'*'- This statute was re-eniacted in New York on March 19, 1774,^^ in the statute reciting that the Enghsh Statute of Frauds was generally received here as law by- usage. It is said by a writer on Roman law that both the sixth and the *8 See pp. so, 52, supra; 2 R. L. *^ i R. L. of 1813, p. 367. 367, 368, §§ 14, IS and 17. B»i R. L. 368, § 17. " 2 P. Will. 75 ; Goodrich v. Shel- ^^ See 4 Burn's Ecclesiatical Law, don, 8 Ves. 481. no. 48 See Fowler's Pers. Prop. Law ^2 5 n. y. Col. Laws 68g. (ad ed.), I3.3-I3S. and S. Col. Laws N. Y. 6Sg, re-enacting 4 & S Anne, chap. 16. 86 • The Decedent Estate Law. § i6 tiwienity-third sections of the Statute of Frauds were Roman laiw transJated, and that these portions of the Statute of Frauds bear internal evidences of familiarity on the part of its framers with the Roman law.'' It is very doubtful whether this coniolusion is wholly justified by the facts known of the framers in question. But the statute certainly does show that the English law regulating revocation of wills and oral or nuncupative wills was derived wholly from Roman sources, for the statute gave expression largely to principles long recognized in some form by the Courts Christian in England. It had been the intention of the revisers of the Revised Statutes, in conformity with prior law, to permit the use of nuncupative wills to continue to a larger extent tlian at present. But the Legis- lature struck out all such provisions except the above allowing the use of nuncupative wills to soldiers on actual service and to sailors while at sea.'* In all other cases nuncupative wills were nude, and now are, of no legal effect.-'^' Yet a secret oral trust may still be impressed on written bequests, which are apparendy absolute or beneficial, if the will otherwise complies with the section now regulating the execution of last wills and testaments."' To some extent this is a nuncupative will in legal effect. Thus we perceive tha,t rigidity in any refined system of law is impossible in the end, no matter what the statutes may decree. The continued exception in favor of soldiers and sailors in ac- tual service continues in force as to them the old ecclesiastical law regulating nuncupative wills. As to such wills the law is very liberal in construction. In the case of sailors the expression " at sea " is extended to an arm of the sea where the tide ebbs and flows ;°' but service on a gunboat on the Mississippi river as far up as Vicksburg has been heW not to be " at sea " within the 63 Roman Law of Testaments, Dudley, 95 id. 403; Williams v. Diropsie, 10. Fitch, 18 id. 546; Hirsh v. Auer, 146 6* See below. Reviser's note 6, Ap- id. 13, 19 ; Ahrens v. Jones, 169 id. pendix I; Hubbard v. Hubbard, 8 555, s6o; McClellan v. Grant, 83 N. Y. 196. App. Div. 599. Cf. Hone v. Van 65 2 R. S. 60, § 22, now made § 16, Schaick, 7 Paige, 26. supra 57 Hubbard v. Hubbard, 8 N. Y. 56 § 21, infra; Amherst College v. 196. Ritch, isi N. Y. 282; O'Hara v. § i6 Nuncupative Wills. 87 statute. °^ In the latest case reported the nuncupative will of a mariner made while ill, at sea, was probated, although such mariner recovered, and then died on shore a few days after the ship's arrival in port.^" In the case of a nuncupative will by a qualified person neither witnesses nor any particular form of bequest is necessary to valid- ity, nor is the designation of an executor longer essential."" A mere expression of a dispositional nature contained in the letters of a soldier in actual service to his sister at home has been held, and doubtless rightly held, to constitute a nuncupative will."^ 58 Gwin's Estate, i Tuck. 44. 154 ; Matter of O'Connor, 65 Misc. 59 Matter of O'Connor, 63 Misc. 403. 403. «i Botsford V. Krake, i Abb. Pr. 60 Hubbard v. Hubbard, 8 N. Y. N. S. 112. 196; Ex parte Thompson, 4 Bradf. 88 The Decedent Estate Law. § 17 § 17. Devise or bequest to certain societies, associations and corporations. No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, re- ligious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. Formerly chapter 360, Laws of i860: AN ACT relating to wills. Passed, April 13, i860. The People of the State of New York, represented in Senate and As- sembly, do enact as follows : Section i. No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half, and no more). § 2. All laws and parts of laws inconsistent with this act are hereby re- pealed.82 Comment. The act of 1S60 was of great interest at the time not only to families of property but to the religious and charitable corporations of this State. Prior to i860 the restrictions imposed by the law of this State on devises and bequests to charitable and religious corporations were wholly directed to the power of such corporations to take and to hold property by devise. If they possessed the chartered power to take there was no other inhibi- tion, and testators might devise or bequeath their entire estates to them. We have sketched before the character of such legisilation, and the reader is referred to the commentary on section 12 of this act, -which now prescribes who are competent to take by devise."' The act of i860, now embodied in this section, restricted the power 82 Repealed by Decedent Estate ^^ See above, pp. 67-70. Law of igog. See below, § 130. § 17 Restrictions on Charitable Devises. 89 of certain persons, having particular family relations, to devise or bequeath more than one-half of their net estate to charity. At the time the act of i860 vi^as enacted a testator might give the whole of his estate to charitable corporations, which alone oould take and hold in perpetuity for charitable objects."* The act of i860 cut 'this power down to one-half of testator's estate under certain circumstances, and restricted the entire scope of testa- mentary gifts to found permanent charitable trusts."^ Since then permanent devises and bequests to cliaritable uses have been made lawful by statute, and a testator may now devise and bequeath to natural persons or private trustees for charity in perpetuity and he is no longer restricted to gifts to charitable corporations. Such devises and bequests to individuals are altogether outside of the scope of the act of i860 or this section and are not thereby in- hibited."" Thus we perceive that the act of i860 has losft much of its remedial force in so far as it was intended to circumscribe the ability of testators' to give to charity when such testators had family responsibilities or natural obligations."' When gifts to charitable uses, except to corporate charities, were unlawful, because in con- flict with the rule against perpetuities, the act of i860 was very influential. But now by devising to individuals the same end may be accomplished as by a devise to charitable societies or corporations."* Section applies only to Wills. This act by express terms has no application to gifts made otherwise than by devise or bequest to the classes of corporations specified in the act. Consequently a contract to give to charity is outside of the act, and so are gifts to individuals for charitable uses."" Yet any attempt to circumvent 6* Levy V. Levy, 33 N. Y. 97, 124; "Allen v. Stevens, 161 N. Y. 122, People V. Powers, 147 id. 109. 149; Robb v. Washington & Jeffer- 65Bascom v. Albertson, 34 N. Y. son College, 185 id. 485, 494- 584, 617; St. John v. Andrews In- ^^Cf. Amherst College v. Ritch, stitute, 191 id. 254, 273. 151 N. Y. 2. 66 Chap. 701, Laws of 1893, now' ^9 Allen v. Stevens, 161 N. Y. 122; § 113, Real Prop. Law; Allen v. Board of Missions v. Mechanics' Stevens, 161 N. Y. 122; Bowman v. Savings Bank, 40 App. Div. tzo; Domestic & Foreign Miss. Society, Robb v. Washington & Jefterson 182 id. 494 ; Kingsbury v. Brandegee, College, 185 N. Y. 483. 113 App. Div. 606, 611; Catt V. Catt, 118 id. 742, 752. cjo The Decedent Estate Law. § ly the statute of i860 by a devise or bequest to individ'ualis is doubt- less still void'" Intent of the Statute of i860. Section 17 of this act, being a mere re-enactment of the act of i860, set out above, is governed by the construction accorded to that act. The act refers to both real and personal estates ; it was not conceived in a spirit of hostility to charitable corporations. It was designed to regulate and restrict the power of testators,''^ and is for the benefit of their heirs-at- law'^ and to pre\'ent certain testators from giving their all to charity to the total disregard and disappointment of those very- near to them by blood.'^ This act is not, as sometimes said, in- tended to prevent persons languishing, or in articulo mortis, from making charitable bequests improvidently, for it specifies no such particular time. It is general as to time and condition of testator in application, and at no time, sick or well, can testators, having a husband, wife, child or parent who will survive theim, devise or bequeath to the charitable or benevolent society, association or cor- poration coming within the act, more tlian one-half of bis or her estate." Section Applies When. But the act now expres'sed in this sec- tion has no application to societies or even to coirporations which are not within the inhibition of the act, either in spirit or in fact.''^ It does not apply to gifts in trust to individuals.'" But if the testa- tors' intent is to circumvent the act then the act will apply." '"Fairchild v. Edson, 154 N. Y. 'b Matter of Crane, 12 App. Div. 199. See text under § 19, infra on 271, 276, aff'd 151 N. Y. 557; Robb this point. v. Washington & Jeflferson College, '1 Bascom v. Albertson, 34 N. Y. 185 N. Y. 485, 494 ; Smith v. Haven's 616; Scott V. Ives, 22 Misc. 749. Relief Fund Society, 118 App. Div. '2 Chamberlain v. Chamberlain, 43 678; Matter of Morgan, 56 Misc. N. Y. 424, 440; St. John V. An- 235. draws Institute, 191 id. 254, 275. '^ Allen v. Stevens, 161 N. Y. 122. '3 Allien V. Stevens, 161 N. Y. at "Amherst College v. Ritch, 131 pp. 148, 149. N. Y. 2. '* Matter of Stone, 15 Misc. 317, 319; St. John V. Andrews Instituie, 191 N. Y. 275. § 17 Restrictions on Charitable Devises. 91 It does not apply to devises or bequests to the State or to munici- pal corporations or to devises to individuals for charitable uses,'* or to a bequest to a priest for masses ; '" but it certainly should apply to devises in trust to individuate to convey to charitable coripora- tiions to be formed.*" It applies only to devises or bequests by will, not to deeds or other dispositions inter vivos.^^ Who May Invoke the Application of this Section. The act refers to those having a husband or wife, child or parent, and the word " having " is construed as leaving.*- But the act of i860 is not confined to those named in it. It may be invoked not only by the persons named in the statute but by any one who derives a benefit therefrom, and is afifected adversely.*^ But it may not be invoked by the husband of an appointee of a power, for the donee of the power is not appointing her own estate to charity.** Where none of the relatives mentioned in this section survives the death of the testator the act does not apply and the whole ©state may be devised and bequeathed to charity.*^ Benefit of the Act May Be Waived. The benefit derived from this section may be waived by those afifected adversely.** But such waiver must be express and can not arise by estoppel or conduct only.*' 78 Matter of Crane, 12 App. Div. as to this point, 185 N. Y. 485 ; St. 271; Allen V. Stevens, 33 id. 485, John v. Andrews Institute, 117 App. 507; Clements v. Babcock, 26 Misc. Div. 698; 191 N. Y. 254; cf. Mat- po, 96. ter of Eldredge, 55 Misc. 636; Rich w Matter of Zimmerman, 22 Misc. v. Tiffany, 2 App. Div. 25 ; Amherst 411. College V. Ritch, 151 N. Y. 282, 334; 80 Fairchild v. Edson, 134 N. Y. Frazer v. Hoguet, 65 App. Div. 191, 199; Matter of Rounds, 25 Misc. loi. 201; Moser v. Talman, 114 id. 850. But see Allen v. Stevens, 3.3 App. 84 Farmers' Loan & Trust Co. v. Div. 48s, S07, 160 N. Y. 123. Shaw, 56 Misc. 201; 127 App. Div. 81 Robb v. Washington & Jefferson 656. College, 185 N. Y. 485, 494. 85 St. John v. Andrews Institute, 82 St. John v. Andrews Institute, 191 N. Y. 254, 273,' 274; 192 id. 382. 191 N. Y. 275. ^ Amherst College v. Ritch, 151 83 Harris v. American Bible So- N. Y. 82 ; Matter of Stilson, 85 App. ciety, 2 Abb. Ct. App. Dec. 31b; Div. 132. Robb v. Washington & Jefferson 87 Scott v. Ives, 22 Misc. 749. College, 103 App. Div. 327, 34S, aff'd. 92 The Decedent Estate Law. § 17 Wills by Persons Being Husbands or Wives. The legislation of the character set forth in this section applies to wills made by wives whose husbands survive them. But the next s-ucceeding sec- tions of this act do not so apply.^^ The Operation of this Section is Limited to One-Half of Tes- tator's Estate. The act of i860, now re-enaoted in section 17 of the Decedent Estate Law, does not invalidate all the devises or bequests to charity if it or they exceed one-half of testator's estate in the aggregate, but it defeats the gifts in excess of onie-half of the estate. To the extent of one-half such devises or bequests are valid.''^ Whether or not the devise or bequest, falling within this act, is in excess of one-half of the testator's estate is a matter for judicial inquiry when it is properly put at issue by the ipleadings.'" In ascertaining the value of the estate, for the purpose of the application of this section, testator's debts must be first deducted,"^ and also the value of the widow's dower .''^ The valuation of the estate for the purposes of this act is to be determined as oif the date of the testator's death, and not as of the time of executing the will."^ If thie testator's whole estate is real or personal property and a portion of it is given in kind to charity, under this act the value of the parts so given and the value of the whole must be ascertained. To ascertain if a testator has given more than one- half of his estate, in contravention of the statute, his whole estate must be treated as converted into money at his death, and if the money poTtion given to charity is not more than one-half of the *^ §§ 18, ig. 91 Chamberlain v. Chamberlain, 43 8' Chamberlain v. Chamberlain, 43 N. Y. 424, 440. N. Y. 424; Hollis V. Drew Theologi- ^^ chamberlain v. Chamberlain, 43 cal Seminary, 95 id. 166, 178; Cham- N. Y. 424, 440; Hollis v. Drew Theo- berlain v. Taylor, 105 id. 185, 193; logical Seminary, 95 id. 166, iSo; Horton v. Cantwell, 108 id. 255, 265; Matter of Strong, 121 App. Div. 112. Garvey v. Union Trust Co., 29 App. ^^ St_ John v. Andrews Institute, Div. S13. 521. 191 N. Y. 254; Matter of Durand, 90 Chamherlain v. Chamberlain, 43 194 id. 477. See Harris v. Ameri- N. Y. 424, 439; Hollis V. The Drew can Bible Society, 2 Abb. Ct. App. Theological Seminary, 95 id. i6b; Dec. 316, 323, as to the like rule of Hornberger v. Miller, 28 App. Div. the Roman law, " Lex Falcidia." 199, 202; Matter of Will of Walker, 136 N. Y. at p. 27. § 17 Restrictions on Charitable Devises. 93. whole, after the proper deductions, the statute is not vidlated.^* If the devises and legacies to charity exceed one-half of the whole then they must aibate ratably, so as to come to one-half of the whole after proper deductions first made.^'' Where life estates are given by testators and devises or bequests ■over to charity, or where even intermediate estates intervene before remainders vest in possession, the value of the life estates may be determined by the help of the annuity tables, in order to ascertain whether the actual value of the devises or bequests to charity exceed one-half of the testator's whole estate. The same rule wil'l apply where an estate for years or lives is given to charity, and remain- ders over for life, or in fee, to others. The value of the estate or interests so given to charity may be ascertained by proof of actual value, or estimated by the help of the annuity tables,"^ and if they are then found to be in excess of one-half oi the whole they must be abated pro tanto, as stated a:bove.°' If, however, the life estates devised or bequeathed terminate before the trial or judicial valua- tion, then the value of the actual duration of such life estate must be ascertained in determining, whether at the time of his death testator's devises or bequests to charity exceeded one-half of his whole estate. Such actual valuation is not to be determined by annuity tables, which relate to the value of average probable dura- tion of life and are applied to fixed ages of existing life tenants. The tables do not apply to estates, the duration of which is actually ascertained by effluxion of time, nor can they be applied where the value of an outstanding intermediate estate can be ascertained only by events to arise in the future.®® When it is finally ascertained that the legacies within this act are in excess of one-half of testator's estate there is an intestacy 54 Hollis V. Drew Theological Sem- v. Tiffany, 2 App. Div. 28 ; Matter inary, 95 N. Y. 166, 179; Matter of of Durand, 194 N. Y. 477, 488; Mat- Moderno, 5 Dam. 288. ter of Strang, 121 App. Div. 112. 55 Chamberlain v. Chamberlain, 43 " Supra, p. 93. N. Y. 424, 441, aff'd, Chamberlain ss Rich v. Tiffany, 2 App. Div. 25; v. Taylor, 105 id. i8s. Matter of Teed, 59 Hun, 63; Matter 's Hollis V. Drew Theological Sem- of Strang, 121 App. Div. 112; Has- inary, 95 N. Y. 166, 178; Orphan brouck v. Knoblauch, 59 Misc. 99. Asylum v. White, 6 Dem. 201 ; Rich 94 The Decedent Estate Law. § 17 as to the excess, uniless there is some valid or contingent limitation over, in the event of the failure of such devise or bequest.'" Surrogate's Jurisdiction to Pass on the Issues raised Under this Section. It is beyond the scope of this treatise to deal with practice questions of particular jurisdictions, and a general refer- ence to some of the decisions on the jurisdiction of surrogates to pass on the validity of devises and bequests under this section must suffice.^ " Chamberlain v. Taylor, 105 N. N. C. at p. 419 ; Rich v. Tiffiany, 4 Y. 185, 19s ; Kearney v. Missionary App. Div. at p. 28. Society, 10 Abb. N. C. 274; Gar- 1 Matter of Will of Walker, 136 vey V. Union Trust Co., 29 App. N. Y. 20, 26; Matter of Counrod, 27 Div. 513; Matter of Counrod, 27 Misc. 475 ; Matter of Talmage, S9 id. Misc. 475. Cf. Matter of Moderno, 130. 5 Dem. 288; Betts v. Betts, 4 Abb. § l8 Restrictions on Charitable Uses. 95 § 18. Devise or bequest to certain corporations. No person leaving a wife, or child, or parent shall devise or bequeath to any institution or corporation formed under laws of eigh- teen hundred and sixty-five, chapter three hundred and sixty- eight; laws of eighteen hundred and seventy-five, chapter two hundred and sixty-seven ; laws of eighteen hundred and seventy-five, chapter three hundred and forty-three; or laws of eighteen hundred and eighty-six, chapter two hundred and thirty-six, more than one-fourth of his or her estate after payment of his or her debts, and such devise or be- quest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. Formerly § 6 of chapter 368, Laws of 1865, entitled "An act for the in- corporation of societies or clubs for certain social and recreative pi:rposes." Same provision § 7, chap. 267, Laws of 1875 ; § 5, chap. 343, Laws of 1875; chap. 236, Laws of 1886, acts for incorporating clubs, libraries, etc. etc. : § 6 (Chap. 368, L. 1865). Any corporation formed under this act, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual incofme of which devise or bequest shall not exceed the sum of ten thousand dollars, provided no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or cor- poration more than one-fourth of bis or .her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.2 Same provision in chap. 267, Laws of 1875, entitled "An act for the in- corporation of societies or clubs for certain lawful purposes." § 7 (chap. 267, L. 187s). Any corporation formed under this act shall be capable of taking, holding or receiving any property real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars ; provided, no person leaving a wife, or child, or parent, shall devise or bequeath to such insti- tution or corporation more than one-fourth of his or her estate, after pay- ment of his or her debts, and such devise or bequest shall be valid to the 2 Repealed § 310, Membership Corporations Law and § 130 Decedent Estate law. g6 The Dedecent Estate Law. § i8 extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been, made and executed, at least two months before the death of the testator.3 Same provision in § 5, chap. 343, Laws of 1875, entitled "An act for the incorporation of library societies." * Same provision in § 7, chap. 236, Laws of 1886, entitled "An act for the incorporation of political clubs."^ Comment. Section 18 of the Decedent Estate Law is the sur- vival of the statutes set out above. No new ooriporations can in future be formed under those acts, as they are all niow repealed.® But as the Board of Consolidation say, in substance, in their note to this section,'^ the acts, set out above, contain an important limi- tation on all devises or bequests to corporations already formed and existing under those acts. Section 18 of the Decedent Estate Law was, therefore, necessary to express and continue the existing limi- taitions indicated. A precisely corresponding provision to section 18, Decedent Es- tate Law, is now contained, in the Consolidated Membership Corpo- ration Law.* With the exception that the amount is made one-fourth and not one-half, the provisions of section 18, Decedent Estate Law, corre- spond with the provisions contained in section 17, Decedent Estate Law. The construction accorded to section 17 will, therefore, apply to section 18, and the citations of authority given under section 17 need not be here repeated. 3 Repealed § 310, Membership Cor- porations Law and § 130, Decedent porations Law and § 130, Decedent Estate Law. Estate Law. * § 310, Membership Corporations ^ Repealed § 310, Membership Cor- Law ; § 130, Decedent Estate Law. porations Law and § 130, Decedent ' Note 4, Appendix L infra. Estate Law. ^ §§ 18, and 19, Membership Cor- 5 Repealed § 310, Membership Coi- porations Law. § 19 Restrictions on Charitable Devises and Bequests. 97 § 19. Devise or bequest to certain benevolent, charitable and scientific corporations. No person leaving a wife, or child, or parent, shall devise or bequeath to any institution or corporation formed under laws of eighteen hundred and forty-eight, chapter three hundred and nineteen, more than one-half of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid, to the extent of such one-half, and no such devise or bequest shall be valid, in any will which shall not have been made and executed at least two months before the death of the testator. Formerly § 6, chap. 319, Laws of 1848, as amended by § i, chap. 623, Laws of 1903: § 6 (chap. 319, L. 1848). Any corporation formed under this act, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars; provided, no person leav- ing a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the pay- ment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.' In 1881 the legislature enacted chapter 641 of that year as follows: AN ACT relating to the right of benevolent, charitable, religious, scien- tific and missionary societies to take and hold real and personal estate. Passed, July 13, 1881. The People of the State of New York, represented in Senate and As- sembly, do enact as follows : Section l. All corporations already formed or which hereafter may be formed under and in pursuance of chapter three hundred and nineteen of the laws of eighteen hundred and forty-eight, being "An act for the incorpo- ration of benevolent, charitable, scientific and missionary societies,'' and the several acts amendatory thereof, and their successors, by their corporate name, shall in law be capable of taking, receiving, purchasing, and holding real estate for the purposes of their corporation to an amount not exceed- ing the sum of two hundred thousand dollars in value, and personal estate for like purposes to an amount not exceeding the sum of two hundred 9 Amended by chap. 623, Laws of dent Estate Law and § 310, Mem- igos, and repealed by § 130, Dece- bership Corporations Law. 7 98 The Decedent Estate Law. § 19 thousand dollars in value, but the clear annual income of such real and per- sonal estate shall not exceed the sum of fifty thousand dollars, subject, how- ever, to the restrictions upon devises and bequests contained in an act en- titled "An act relating to wills," passed April thirteen, eighteen hundred and sixty. § 2. This act shall take effect immediately.!" Section i (chap. 623, L. 1903). Section six of chapter three hundred and nineteen of the laws of eighteen hundred and forty-eight, entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies," is hereby amended to read as follows: § 6. Any corporation formed under this act, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatso- ever; provided, no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-half of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-half, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator."- Comment. The reader •will observe at a glance that the acts oow set out in section 19 of the Decedent Estate Law. dt> aipply expressly only to the corporations formed under chapter 319, Laws of 1848, entitled "An act for the incorporation of beneviolenit, chari- table, scientific and missionary societies." It will also be observed that devises and bequests to any such corporations must be con- ■tained in a will made and executed at least two months before the death of testator. As a very large number of the existing charitable foundations of this State have been incorporated under the act of 1848, it is apparent that these particular limitations on devises and bequests to them are very important in the law of this State.^^ The enactment of chapter 623, Laws of 1903"^^ made it very clear that the act of i860 (chap. 360") was not intended to repeal any part of the act of 1848.^^ ID Repealed by § 147, chap. SS9. ^^ See for example, Matter of Laws of 1895. See § 310, Member- Pearson, 52 Misc. 273. ship Corporations Law (chap. 315, ^^ Supra, p. 98. Consol. Laws of 1909) and § 12, ** § 17, Decedent Estate Law. General Corporation Law (chap. 23, ^^ Now § 19, Decedent Estate Consol. Laws of 1909). Law; Pearson v. Collins, IJ3 App. " Repealed § 310, Membership Div. 657. Corporations Law; § 130, Decedent Estate Law. § 19 Restkictions on Charitable Devises and Bequests. 99 Present Disposition of Substance of Chapter 319, Laws 1848. The Membership Corporations Law continues in force the provi- sions contained in the first portion of section 6, chapter 319, Laws of 1848, to the effect, that any charitable^ scientific or missionary corporation formed under chapter 319, Laws of 1848, shall be capa- ble of taking, holding or receiving any property real or personal by devise or bequest; but subject to the provisions of this par- ticular section 19 of the Decedent Estate Law.^* Thus a part of the act, chapter 319, Laws of 1848, is now contained in section 19 of the Members;hip Corporations Laiw, and anothier part, restrict- ing the amount of the devise or bequest, in section 19 of the De- cedent Estaite Law. General Restrictions on Devises and Bequests to Charity. There is also a general restriction on the power of such charitable or eleemosynary .corporations to take and to hold property which at present is contained in section 12 of the General Corporation Law of 1909. It fixes a maximum (in the absence o£ any dififerent special regulation) of three millions of dollars in value, or five hundred thousand dollars yearly income.^' Construction of Section 19. The reader wiH also observe by reference to sections 17, 18 and 19 of the Decedent Estate Law that these sections are in pari materia, and Kke all statutes, in pari materia they are to be construed together whenever two or all are relevant to the same devisie or bequest. The provisions of these sections while in pari materia are yet different and they ought to be soon revised and made uniform and general in applicaition. In some cases at present under these sections a testator miay leave one-half of his estate to certain charitable uses ; in other like cases only a quarter. In some cases the will to charity must be made two months before decease of testator; in other cases there is no "§ 19, Membership Corporation Y. 66, 84; Hornberger v. Miller, 28 Law. App. Div. 199; Matter of Lampson, " § 12, chap. 23, Consol. Laws of 33 id. 49, 52. 1909; Matter of McGraw, iii N. 100 The Decedent Estate Law. § ig such restriction. In cases of devises or bequests to private persons for charitable uses there is now no limitation ion the amount of the estate which may be given to charity, whereas if the same gift is made to corporations they are valid only to lihe extent of one- half. So a gift to charitable uses if contained in a will made less than two months before death may be invalid, but if made in another mode the same gift may be valid, ailthough made by the testator at 'the very moment of his dissolution. Such iniconsisten- cies are unworthy of the law of so great a State, and should be speedily remedied by uniform legislation.^* Sections 17 and ig to be Construed Together. Sections 17 and 19 of this act relating to the same subjectHmatter are to be construed together; they are not inconsistent, and the act of i860 (now section 17), though passed subsequently to the act of 1848 (now secti'on 19), was held not to repeal that part of the act of 1848 which related to the execution of devises or bequests less than two months before death of testator.*' Section 19 Refers Only to Corporations Formed Under Act of 1848 or Made Subject to Its Provisions. The operation of the act O'f 1848 (now section 19, Decedent Estate Law) is confined to the corporations formed under that particular act,^° unless some other act extends its operation to other like corporations.^* No act of this State intepdicts gifts to foreign corporations^^ and, in 18 See for example Matter of 161 N. Y. 511; Matter of Norton, Beaver, 62 Misc. 155 and dissenting 39 App. Div. 369 ; Matter of Foley, 27 opinion of Allen, J., 59 N. Y. 445, Misc. ^T, Matter of Hamm, 28 id. 446, as to how far act of i860, chap. 307; Matter of Shattuck, 118 App. 360, repealed act of 1848, chap. 319, Div. 886; Pritchard v. Hirsch, 58 legislating as they did on the same App. Div. 332; Matter of Cornelius, subject. 23 Misc. 434. 18 Lefevre v. Lefevre, 59 N. Y. ^i Matter of Kavanagh, 125 N. Y. 434; Kerr v. Dougherty, 79 id. 327; 418. C/. Matter of Lampson, 161 Pearson v. Collins, 113 App. Div. id. 511, 515-519. 657. 22 Chamberlain v. Chamberlain, 43 20Hollis V. Drew Theo. Sera., 95 N. Y. 424; Matter of Estate of N. Y. 166; Fairchild v. Edson, 154 Prime, 136 id. 347; Danimert v. Os- id. 199 ; Matter of Lampson, 22 bom, 140 id. at p. 40. Misc. 198, affd., 33 App. Div. 49, 19 Restrictions on Charitable Devises and BEQUESTS^ terms, the act of 1848 does not apply to corporations of another State.'^ New Corporations Formed After 1848 are Sometimes Sub- jected to the Provisions now Contained in Section 19. A pro- vision in a charter or act creating a domestic corporation, that it shall be subject to all prior laws regulating corporatiop. «s Will of Mandelick, 6 Misc. 71 ; Div. 76a, 765 ; Matter of Phillips, 98 Matter of Whitney, go Hum, 138; N. Y. 267; Matter of Hunt, no id. Matter of Whitney, 153 N. Y. 259; 381. Roche V. Nason, 105 App. Div. 256. 'i Matter of Haviland, 17 Misc> «8 Matter of Tighe, 24 Misc. 459; 193- Williams on Executorsv 63. '^ Matter of Fults, 42 Aop. Div. «Ca«lfield V. SuUivart, 8s N. Y. 593'. iS3f 161; Matter of Sarasohn, 47 '^ Matter of Snell, 32 Misc. 611I; Misc. 531S. Matter of Fitzgerald, 33 id. 323; "SLytle V. Beveridge, 58 N. Y. Matter of Dake, 98 App. Div. 629. 593; Matter of Raisbeck, 52 Misc. '* Roche v. Nason, 105 App. Div. 279. 256. "9 Fr. 28 D. 28, I. This is on the principle, qui facit per alium facit per se. § 21 Execution of Wills hi intentions of what he wills to be performed after his death." ^^ This definition is after all only an incomplete paraphrase derived from the Roman law.'" But it is not from the oommon lawyers that England and Anglo-American law take their definition of a " last will and testament." For such authoritative definition we must look back to the spiritual courts and to their successors, the modern courts of prabate.^^ Nor shall we find it there in any one place, but rather in all that great body of modern law which is concerned vaguely -with the decisiions bearing on what was referred tO' above as " factum of a will " in the parlance of 'the common lawyers. By the " factum " of a will comimon lawyers, as sucessors in modern law of the ecclesiastical lawyers, seem to imply all that which the Roman or civil law treated of generally under (i) " tes- tamenti f actio" or legal capacity of all concerned in the making of the will, and (2) external form of the testament. In other words, the " factum " of a will now implies, ( i ) capacity to will ; ^^ (2) animus testandi, or an intention of testator to make the par- ticular will, and (3) all the necessary legal requirements regarding the execution of the formal instrument itself. It will be observed that it is only in respect of the last elements of factum that the present statute is concerned. The other elements of " factum " are determined by the common law, which as it is held now 'embraces the old ecclesiastical law of England. The Statute Governing Execution of Wills in New York. Unless the statute regarding execution is complied with in sub- stance, a last will, under the law of New York, is now invalid, and cannot be probated as either a bequest of personalty or a devise of realty, or even be made evidence in a court of law as a devise of realty.''^ The statute of this State now fixes an inflexible rule by which to determine the proper execution of all testamentary instruments.** Animus testandi, or the intention of the testator to miake a will, ''^ See Langdon v. Astor's Exec- ''* Clark v. Fisher, i Paige, 171 \ utors, citing- Blackstone and Kent, Matter oi Lyman, 14 Misc. at p. 16 N. Y. at p. 49, and supra, p. 45, 358. et vide infra. "Remsen v. Brinkerhoff, 26 Wend. ^^ Fr. I D. 28, I. 1097; Lewis v. Lewis, 11 N. Y. 220. "Swinburne, pt I, chap, i, § 2; 8" Matter of O'Neill, 91 N. Y. 516- Godolphin, pt. i, chap, i, § 2; 520, 521. Matter of Diaz, 50 N. Y. 88, 92. 112 The Decedent Estate Law § 21 is no longer controlling in determining questions of law concerning the ckie execution of wills under the statute, if the formalities re- quired by law are lacking. There must, in other words, be an essential compliance with the statutory requirements touching the formal execution of the testamentary instrument, or there is no sufficient proof of animus testandi and the document is no last will under the present statute.*^ Having glanced at the principles which govern in the construc- tion of the existing Statute of Wills, it must be apparent, that the construction is much more strict than that which prevailed in regard _ to wills executed before the Revised Statutes. In the old law if animus testandi was found to exist, the courts were very astute to find ways to give effect to informal testamentary instruments,. At the present day animus testandi is not presumed until the other elements of factum of a will under the statute are established, and only then it is that the courts of this State are astute to effectuate the intention of testators. The various specific requirements of the present Statute of Wills may be next briefly considered. Will Must Be Subscribed by the Testator at the End Thereof.*^ Prior to the Revised Statutes under the Statute of Wills- (which embraced the Statute of Frauds*^) the will need only be signed by the testator and the signature might be found anywhere in the body of the will if animus testandi existed.** This liberality of construction gave rise to great uncertainty concerning the com- pletion and the extent of the instrument itself, as it was not always evident under the old law that what followed, or was without sig- nature, was to be takpn as a part of a will. To remedy this un- certainty the Revised Statutes required a subscription by the tes- tator at the actual end of the will. This direction is ordinarily paramount and controlling, and it excludes a constructive ending.*^ 81 Matter of Andrews, 163 N. Y. 85 Tonnele v. Hall, 4 N. Y. 140; I, s; Matter of Kislin, 37 Misc. Sisters of Charity v. Kelly, 67 id. 187; Matter of Hewitt, 91 N. Y. 409; Matter of Will of Hev/ett, 91 261, 263. id. 261; In the matter of the Will 82 § 211, Decedent Estate Law, sub- of O'Neil, 91 id. 516; Matter of div. I. Connvay, 124 id. 455 ; Matter of ^^ Supra, pp. 50-54. Whitney, 153 id. 259; Matter of 8* Matter of Will of Booth, 127 Andrews, 163 id. i; Matter of N. Y. IC9, 114. Schlegel, 62 Misc. 439. § 21 Execution of Wills 113 The end of a will (within the meaning of this statute) was said in a great case in the Surrogate's Court for New York county in the year 1847 to be not the physical end (for there are two physical ends to a will) but the '" intellectual or speaking end," which clearly does not admit of two dimensions.^" By the " intellectual or speak- ing end " the learned surrogate apparently meant the dispositional parts of the instrument, for the Revised Statutes were fram'cd to exclude testamentary dispositions which were extrinsic, or not clearly a part of the testator's last will." It was not addressed to the mere situation of the signature in reference to the formal parts of a will, such as the testimonium or the attestation clause which may follow or precede the signature of testator without harm. Any judicial construction of the statute which is founded on the literal reading of the statute would be too harsh and not in accord with the established construction of the Statute of Wills. To refuse probate to a will which is virtually subscribed at the end thereof, because not actually subscribed at the physical end, would be car- rying formalism to a logical extreme which rational jurisprudence abhors. What is the end of the will within the statute is, however, a question of law now too often raised in cases arising on last wills.** It is since the Revised Statutes usual, although not indispensable, to end the body of a will with what is called the " testimonium " clause,*" usually beginning, " In witness whereof I have to this my last will and testament * * "* ■ set my hand, this day of , 1910." This clause is usually followed by the wit- ness or attestation clause which is usually indented, but need not be."" A signature of the testator by the side of the attestation clause, and at the end O'f the final testimonium clause of the will °^ prevents any queston as to situation of his signature under the 86 Matter of John Tonnele's Will, 211; Matter of Cornell, 89 id. 511; S N. Y. Legal Observer, 354. Jackson v. Jackson, 39 N. Y. 153. 8' Matter of Gibson, 128 App. Div. ^iThe following forms and situa- 767. tion of the testimonium clause, and ** McGuire v. Kerr, 2 Bradf. 244; the attestation clause following, Matter of Jacobsoo, 6 Dem. 298; are those commonly employed in Cohen's Estate, i Tuck. 286. practice (although no seal is neces- 89 94 N. Y. at p. S40. sary in New York), but the varia- ^0 Matter of Beck, 6 App. Div. tions from this form are infinite : 114 The Decedent Estate Law § 21 statute, unless the attestation clause is inadvertently followed by- some other dispositional clause underwritten. Such an underwrit- ten clause, in any event, is no part of the will and will either be refused probate,"^ or, if an integral and indispensaible part of the dispository scheme, it may vitiate the will 'altogether when not sus- ceptible of separation."^ A long blank, after the body of the will, followed by the signature of the testator may be construed as a non-compliance with the statute,®* but a short distance between the body or lend of the written instrument and the signature of testator is a substantial cOimpliance with the statute, and such separation raises no implica- tion oi fraud or incompleteness of the will. It was the chance of such implication whidi was the real ' motive for requiring a sub- scription of testamentary papers to be made at the very end thereof."" A substantial compliance with the statute is all that can reason- ably be required,®^ and if the testator sign after the attestation clause, nothing following, it is at the end of the will, and a sufficient compliance with the statute.'^ So where the testator signed before In witness whereof I, John Dtie, the testator, have to this my last will and testament (consisting of this and the two preceding sheets of paper) subscribed my name (and affixed my seal) this .... day of 1909. JOHN DOE. (L. S.) Subscribed (sealed), published and declared, by the said testator, John Doe, as and for his last will and testament, in our presence and in the presence of each of us, and we thereupon at his request, in his presence, and in the presence of each other do hereunto sign our names as attesting witnesses — this clause having been first read to us and we now intending to certify that the matters herein stated took place in fact and in the order herein stated. Peter Roe, residing at No. 10, — Street, New York City; Thomas Smith, residing at No. — , — Street, Yonkers, N. Y. 82 Conboy v. Jennings, i T. & C. 622; Matter of Jacobson, 6 Dem. 298; Will of Mandelick, 6 Misc. 71. S3 Sisters of Charity v. Kelly et al., 67 N. Y. 409, 416. Cf. Matter of Brand, 68 App. Div. 225. 9* McCord V. Lounsbury, 5 Dem> 68. 96 Matter of Oilman, 38 Barb. 264; Younger v. Duffie, 94 N. Y. at p. 539- 96 Matter of Voorhis, 125 N. Y. 765, 767; Matter of Hunt, no id. 278, 281 ; Lane v. Lane, 95 id. 494 ; Matter of Gibson, 128 App. Div. 70^; Matter of De Hart, O7 Misc. la- s' Younger V. Duffie, 94 N. Y. S3S, 540; Matter of Acker, S Dem. 19; Porteous v. Holm, 4 id. 14; Matter of Cohen, i Tuck. a86; Matter of Landy, 161 N. Y. 429. § 21 Execution of Wills 115 the attestation clause, which was written across the entire face of the will, it was held to be a subscription by the testator at the end of the will within the meaning of the statute, as nothing disposi- tional followed the signature."^ So where a testatrix signed in the middle of the attestation clause it was properly held a compli- ance with the statute."* Where anything actually dispositional is placed after the signature of the testator, the will clearly is not sub- scribed at the end thereof, within the meaning of the statute,^ and it has been even held that where appointment of executors is placed after the testator's signature, the will is not subscribed at the end for the punposes of the statute.^ It is the law of this State that a testator must sign before the witnesses to the will, and a subscription by testator, after the witnesses have signed their names to it, is not a subscription within the statute.^ The incorporation of separate or extraneous writings or docu- ments of a dispositional nature, by a cross-reference contained in a will, is not permitted under the present construction of the statute of this State. Nor does the probate of the will itself entitle such writings, if of a dispositional nature, to be probated as part of the will,* unless they also are executed with the formalities required by the statute.® These cases are entitled to be regarded as over- throwing any possible intimation to the contrary,** although such intimations are by judges of great position and in line with the rule in most other states and countries. When separate testamentary papers are executed at the same time, each with the due formali- sm Matter of Beck, 6 App. Div. N. Y. 516, 523; Cook v. White, 43 211; Matter of Murphy, 48 id. 211; App. Div. 388, 393; affd., 167 N. Y. Matter of Donner, 37 Misc. 57. 588; Matter of Andrews, 43 App. 99 Matter of De Hart, 67 Misc. 13. Div. 394, 501 ; affd., 152 N. Y. i ; ^ Supra, p. 112, note 85; Matter Matter of Emmons, no App. Div. of Whitney, 153 N. Y. 259; Matter 701; Booth v. Baptist Church, 126 of Albert, 38 Misc. 61; Matter of N. Y. 215, 247; Cf. Matter of John Gibson, 128 App. Div. 767. Tonnele's Will, 5 N. Y. Legal Ob- 2 Matter of Gedney, 17 Misc. 500. server, 354. 'Jackson v. Jackson, 39 N. Y. 5 Matter of Brand, 68 App. Div. 1631; Sisters of Charity v. Kelly, 67 225. id. 409, 413. Sed cf. In re Karrars' 6 Brown v. Clark. 77 N. Y. at p. Will, 118 N. Y. Supp. 427; cited 377; Matter of Conway, 124 id. at infra, p. 126. p. 466; Vogel v. Lehritter, 139 id. * Matter of Will of O'Neil, 91 a* P- 235- ii6 The Decedent Estate Law § 21 ties required by the statute for acts of testamentation, both are regarded as constituting one instrument for purposes of con&truc- tionJ But in Matter of John Tonnele's Will it was held, that for purposes of probate the addition of a schedule or map after the subscription was to be taken as part of the will, though not sub- scribed.® The law already laid down concerning the due execution of wills is equally applicable to the execution of codicils, as will be seen hereafter." Will Must be Subscribed by Testator. Such subscription shall be made in the presence of each of the attesting ivitnesses, or shall be acknoivledged by him, to have been so made, to each of the attesting ivitnesses^" At least two subscribing witnesses to a will are now an indis- pensable feature of the act of testamentation, except as indicated in section 16 of this act. In probating a written will witnesses are eornipetent, although they may not be experts, to testify tO' the tes- tator's mental condition at the timie of making his will, and they consequently may be asked the direct question. The witnesses are ordinarily selected from among those acquaintances who are of most weight in the community. But circumstances may prevent such a particular selection, and then any disinterested acquaintances, even if most recent, may witness the will. The capacity of witnesses to wills will be considered more at large hereafter in the more ap- propriate place.^^ Wills O'f personalty, executed in accord with the law of a foreign domicile, where testator dies, are as a rule sufficiently executed under the maxim " lex domicilii regit actum." ^^ It is otherwise 'Matter of Brand, 68 App. Div. 536; Cf. § 2611, Code Civ. Proc. 225.. now § 23., Decedent Estate Law; 8 Matter of John Tonnele's Will, Matter of Rubens, 128 App. Div. 5 N. Y. Legal Observer, 254. 626; Dammert v. Osborne, 140 N. Y. ' § 2, Decedent Estate Law. 30 ; and see " The Renvoi Theory," 10 § 21, Decedent Estate Law, 10 Columbia Law Jourm 190 sq. subd. 2. This theory is now much criticised ii/n/m, p. 127 seq. in England. See London Law Mag. 12 See below under 1 23, Decedent & Rev. for Feb. 1910; 26, Law Quar. Estate Law; Moultrie v. Hunt, 23 Rev. 277. N. Y. 394; Dupuy V. Wurtz, 53 id. § 21 Execution of Wills 117 with devises of real estate situated in this State. They must, wher- ever executed, conform to the requirements of the Wills Act then in force in this State.^" It will be observed that the New York statute requires at least two witnesses to a will.^* But as some states require more than two, and the validity of devises of real property is always deter- mined by the law of the State where the real property is situated,^' it is common practice to have more than two witnesses to a will where the testator's real property Hes in divers jurisdictions. When this course is adopted the will may be also executed and published in conformity with the laws of the various States in which the real property affected has its situs. Such separate publioations and executions in various forms are each intended to be a compliance with the laws of a different country.^" Such republication and executions have no adverse or counteracting effect on the particular execution intended to comply with the laws of this State. In pro- bating in New York such an instrument only proofs of the attesta- tion and the forms of execution indispensable by the law of this State need be made.^^ The others will be regarded as superogatory or as made ex abundanti cautela. Suibscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator, and in order to do this it is essential that they should either see the testator sub- scribe his name, or else that with the signature visible to the wit- nesses the intending testator should acknowledge it to be his. In either event the testator must have signed before the witnesses sign,, or the execution is null.^^ , That the testator should sign before the witnesses is indispensible, , i^s they attest the regularity of the signature and could not do so unless he had so signed. 12 See below. 7 ; Dack v. Dack, 84 N. Y. 6&i ; 1* SuprOj § 31 ; Matter of Sizer, Matter of Balmforth, 60 Misc. 492,. 129 App. Div. 7. 497; Lyon v. Smith, 11 Barb. 124; 15 Lynes v. Tofwmsend, 33 N. Y. Carroll v. Norton, 3 Bradf. 291 ; SS8, 561 ; White v. Howard, 416 id. Hoysradt v. Kingman, 22 N. Y. 372. 144; Matter of Kleets Will, 3 Misc. is Matter of Mackay, no N. Y. 38s; Koppel V. Holm, 213 id. 557; 611; Matter of Landy, 148 id. 403, Matter of Cooper, 53 id. 509; § 23, 407; Matter of Clute, 37 Misc. $86; Decedent Estate Law. Jackson v. Jackson, 39 N. Y. 153; IS See Younger v. DufSe, 94 N. Y. Sisters of Charity v. Kelly, 67 id.. 535- 409, 413- 1'' Matter of Sizer, 129 App. Div. Ii8 The Decedent Estate Law § 21 The subscription of a testator may be made by the testator's sign- ing his name, or by his making his mark. But it is said where the mark is made by another, he should not be a witness to the wil'l.^' In the event that the subscription is by a mark made by testator, it is the testator's own subscription, and the usual written statement by another, to the effect that such mark is the testator's mark {e. g., John Doe X his mark), is no part of the subscription itself, and its absence is therefore immaterial.^" A subscription by testator's own mark is quite distinct from a subscription made by a witness at testator's direction. The testator's subscription or mark may be made by a witness to the will, by testator's direction, at least if he is unable to write, and this method of subscribing a will is obviously regular under the statute, which provides for the very case.^^ The Roman law, on the other hand, required such subscription by another to be made by an extra witness to a will, unless the will was holographic, when no subscription was necessary. This extra witness, who •signed the testator's name, wias caJted "octavus subsriptor." But the New York act does not require that the witness who signs for the testator shall be additional to the two required by the statute, alithoUgh such extra witness may be employed. The statute re- quires at least two witnesses, but does noit forbid more, if desired. In the event that the subscription require^d of the testator by the present Wills Act is made through the instrumentality of a witness, such subscription must be in the presence of the other witnesses, or else it must be acknowledged by the testator to the attesting witnesses for and as the testator's subscription. The principles of all the cases cited apply as much to a subscripti:on which is made by the agency of another as to a subscription by the testator's own hand. The declaration of a prior subscription may, however, proceed I'Jarman on Wills, 73 (ed. of Jackson, 39 N. Y. 147, 159. Cf. 1859) ; Matter of Murphy, 15 Misc. Matter of Benevatano, 38 Misc. 272. 208, 211. Cf. Wordenv. Vaw Giesen, "^2 R. S. 64, § 41 ; § 22, Deoedent 6 Detn. 237. Estate Law; Robins v. Coryell, 27 2i> Chaffee v. Baptist Missionary Barb. 956; Butter v. Benson, r Convention, 10 Paige, 85, gi ; Matter id. 526. of Foley, 55 Misc. 162; Jackson v. I 21 Execution of Wills 119 from another by the testator's direction if made in his presence ;^^ anid commonly the testator's professional man, in attendance and charged with the suflSciency of the execution, will make such re- quest or declaration by the testator's authority, the testator merely acquiescing, and this, in the absence of fraud, is taken as the act •of testator.-^ When such a declaration is made by the testator's professional imam in attendance, the general employment seems to imply an express authority to make the request: at least, proof of an express authority by the testator is sometimes absent in cases where a probate has been allowed. In respect of domestic wills, the intending testator prudentially subscribes the will in the actual presence of the attesting witnesses, and such is the best and common practice under the present New York statute. This was also the practice under the Roman' or civil law.^*. But the present statute in New York on this point is not mandatory as to subscription in the presence of the witnesses, for it provides distinctly in the alternative, that testator may acknowl- edge the subscription to have been made by him to each oif the attesting witnesses.'''' Where the will is not signed in the presence of witnesses, the testamentary paper bearing the signature must be produced to the witnesses open,^" with the signature visible, so that they may be enabled to see for themselves such signature. If the signature is concealed from witnesses, the mere aicknowledg- ment of signature will not sufifice.^^ The ,pu/blication of the will is an act distinct from an acknowledgment of the signature.^* Whenever the will is not subscribed by the testator in the pres- ence of the witnesses, the statute requires that his subscription shall be in some way acknowledged to the attesting witnesses by the testator.'* Such was substantially the common-law rule in regard 22 Gilbert v. Knox, 52 N. Y. 1-25 ; ^^ Hoysradt v. Kingman, 22 N. Y. Matter of Carey, 214 App. Div. 531, 373; Peck v. Gary, 27 id. i, 29. 539; Matter of Nelson, 141 N. Y. ^6 Buskin v. Baskin, 36 N. Y. 416; 152. Matter of Landy, 148 id. 403. 23 Matter of Voorhis, 12s N. Y. ^Ti^-y^^^js y. Lewis, ir N. Y. 221; 76s; Matter of Nelson, 141 id. 152, Wooley v. Wooley, 95 id. 231, 235; 157; Matter of Engler, 56 Misc. 218. Matter of Mackay, iio id. 611. 2* The Roman Law was modified 28Lg,(^is y Lewis, 11 N. Y. at p. in the case of holographic wills, 226; Baskin v. Baskin, 36 id. 416. Const. 28, § I, C. 6, 23. 29 § 21^ Decedent Estate Law; 120 The Decedent Estate Law § 21 to deeds, for .the grantor might either sign before witnesses or acknowledge to them his prior signature, as stated by Lord Hard- wicke in 1752.^° What now constitutes such an acknowledgment under our existing Wills Act is a question frequently put for ad- judication. That the testator's plain statement, accconpanied by an act of pointing to his signature, and to the effect that this is his signature, best responds to the statutory requirement is obvious. The probate law is not, however, so rigid or unreasonable as to make such an express declaration the only evidence on this f»oint, for the law, in its wisdom, has always more regard for substance than for form.^^ Where the will, for example, is not signed before the attesting witnesses, but is produced open with the testator's signature visible and able to be seen by the witnesses,^^ and the intending testator then acknowledges to the witnesses that the instrument is his will, anil requests the attending witness.es to sign the same as witnesses, a distinct acknowledgment of the testator's signature is necessarily involved in testator's acknowledgment of the will and the request to vv;itness the same ; and it seems that such a declara- tion and request is a substantial .Qompliance with the statute, in so far as it requires an actual acknowledgment of testator's signature in a case where the will is not signed by the testator before witnesses.^* The testator's subscription may be made in the presence of one witness^* and acknowledged to be such to the others, either together or separately.^^ And such was the construction of ,the old Statute Matter of Mackey, no N. Y. 611; (but note that here the will was Matter of Landy, 148 id. 403, 407 ; holographic) ; Matter of Hunt, no Matter of Abercrombie, 24 App. id. 278, 282; Lyman v. Phillips, 3 Div. 407; Matter of Turell, 47 id. Dem. 459; Matter of Landy, 161 N. 560, 565. Y. 429, 433; Matter of Austin, 45 30 Grayson v. Atkinson, 2 Ves. Hun, i ; Taylor v. Broadhead, s 457- Redf. 624; Porteous v. Holm, 4 31 Matter of Beckett, 103 N. Y. Dem. 14. 167 ; Matter of Abarcrombie, 24 s* Sisters of Charity v. Kelly, 67 App. Div. 407, 408. N. Y. 409, 4n ; Matter of Engler, 32 Matter of Landy, 161 N. Y. 429, 56 Misc. 218; Matter of Burns, 88 4'33- App. Div. 611. 32Baskin v. Baskin, 36 N. Y. 416, 3b Gardiner v. Raines, 3 Dem. 98; 419; Matter of Phillips, 98 id. 267 Willis v. Mott, 36 N. Y. 485; Matter 21 Execution of Wills 121 of Wills.^^ One or other such act must be sufficiently proven under the existing statute in the presence of both witnesses.^^ If the tes- tator subscribes in the presence of one witness or both, it must now be an actual, and not a constructive, presence, in order to satisfy the existing statute. Publication of Wills. The testator at the time of making such subscription, or at the time of acknozt'ledging the same shall declare the instrument so subscribed to be his last zvill and testament}^ Subdivision 3 of section 21, Decedent Estate Law, regards what is now called in the law a " publication " of a last will, and it has reference to the doing of an act by testator wbich shall evince obviously to the attesting witnesses animus testandi or his inten- tion to make the particular instrument sole evidence of his last will and testament. Publication is sometimes called. " authentica- tion," as by Burns, or confused with attestation, as by Mr. Jarman. The Roman or civil law did not lay particular stress on " publi- cation " in a particular way, although it always required that animus testandi be evidenced in some way. It was only when the instru- m'ent was not holographic and was submitted to the witrnesses sealed that the Roman law, after Justinian, required the testator to de- clare that the document contained therein was his last will. Animus testandi could, in .short, under Roman law, be made out in various other ways than by publication or a declaration. It is unnecessary to refer further to the Roman law on this point. In England " publication " is a conclusion of law. It was not regarded under the Statute of Frauds as necessary to complete testamentation.^^ Whether publication was necessary, or what con- stituted a " publication " at common law before the Revised Stat- utes of Wills, was, indeed, highly uncertain. Lord Hardwicke held that publication of an allographic will was necessary, even where testator bad executed such will in the presence of three witnesses.*" of Diefenthaler, 39 Misc. 765 ; Matter 38 § 21, Decedent Estate Law, of Carey, 24 App. Div. 531, 938. subd. 3. 26 4 Kent, Comm. 516. 39 Moodie v. Reid, 7 Taunt. 361 ; 37 Rutherford v. Rutherford, i Jarman on Wills (ist ed.), 71. Den. 33. "3 Atk. 161. 122 The Decedent Estate Law § 21 Yet in another case it was adjudged that even where the will was allographic, or in the handwriting of another, testator's signing in the presence of witnesses and an attestation by the witnesses was sufficient publication under the Statute of Frauds.*^ In short, under the old law of England and New York, prior to the Revised Stat- utes, it was a rule generally, " that a publication of a will might, if necessary, be inferred from circumstances and they would have the same effect to render the instrument valid as a parol declaration." *^ It was doubtless this uncertainty in the old law which inspired the revisers of the Revised Statutes to lay particular stress upon the " publication " of a last will in an obvious or manifest way. The courts of New York have, in substance, placed this construc- tion on the existing Statute of Wills, and it accounts for the present rigidity of probate law in this State. That the present statute is in some res.pects too rigid about formalities is sometimes thought or observed. There is perhaps no valid reason why an intending testator should not be enabled by statute to acknowledge his last will before a judge, or even before a prothonotary, who would then deposit the document sealed in a public office until testator's death or revocation.** Such a mode of execution wouM furnish the best evidence of animus testandi or publication, and in cases of rich testators, in good health, would doubtless stop much ultimate litigation based on allegations of fraud or informality. The ob- jection to such a mode as that suggested goes to a lack of knowl- edge of testator's capacity on the part of officials, and this knowl- edge attesting witnesses are presumed to possess. But even this objection could be overcome by a provision of the statute substi- tuting more competent evidence of capacity than that of mere lay and careless witnesses. But it is not easy to change settled cus- toms and habits of a people, and it is only in order to emphasize the great importance of the due publication of a last will under the present statute that these last irrelevant suggestions are now here offered. So lax was the interpretation of the courts under the old law of " Ray V. Walton, 2 Marsh. 74. « See §§ 30, 31, 3a, and Z3< De- ^2 Bacon's Abr., tit. Wills & Testa- cedent Estate Law. ments, D., and see 4 Bums, Eccles. Law, tit. Wills, Forms and Manner before the statute of i Victoria. § 21 Execution of Wills 123 wills, before the Revised Statutes, that " attestation " and " publi- cation " of a will were frequently confused, or regarded as one act. Even Mr. Jarman, in his well-known work on wills, when referring to the old law, does not distinguish clearly these separate acts;** but evidently because the existing statute did not require publica- tion.*' The New York revisers, who were in intellect and attain- ment the professional peers of any of their contemporaries in Eng- land, no longer tolerated a confusion between publication and attestation. Consequently publication and attestation, since the Re- vised Statutes, are now regarded as distinct acts and are both tO' be established in this State. That both publication and attestation may be made out by the same set of facts*" does not negative the accu- racy of the statement, that both publication and attestation are now necessary to establish an instrument as a last will and testament. The third subdivision of section 21 of the present act requires that the testator shall declare the testamentary instrument to be his last will and testament. Such a declaration is obviously the most direct evidence of a publication. But proof of publication may be indirect or circumstantial. A declaration has been defined as an open act, a manifest signification or assertion or assent by word or signs.*' The purpose of the statute in requiring publication was to make it sure that the testator knew that he was making a will, andl not some other instrument.** A publication of a will is then, by statute, a contemporaneous dec- laration to the attesting witnesses on the part of, or by, the testator, himself, that a particular document is his last will and testament; and such a declaration made out in some form is an indispensable requisite to probate or title derivative under the present Statute of Wills. Publication can, however, be spelled out, and it need not be made out in one particular way only. Any comm'unioation of the testator to the attesting witnesses, whereby be makes known or signifies to them that he intends a particular document to take "Jarman on Wills, 74 (ed. 1843). ^s Lewis v. Lewis, 11 N. Y. 220, « Lewis V. Lewis, 11 N. Y. at p. 2127; Trustees of Auburn Seminary 23. V. Calhoun, 35 id. 422, 425 ; Matter « Matter of Murphy, is Misc. 208, of Moore, 109 App. Div. 762, 765; 212. Matter of Balmforth, 133 id. 521. "Ex parte Beers, 2 Bradf. 163. 124 The Decedent Estate Law § 2r effect as his will now suffices as a publication.'"' Circumstances may- be adduced to make out " publication," and so the conduct of the testator is evidential in some degree to establish animus testandi or publication, if it occur at the time of execution.^" But as a rule subsequent declarations of testator are inadmissible.^"* Knowledge of the witness and the testator that the instrument executed is in- tended to be a last will is not sufficient without 'the publication re- quired by the statute.^^ The declaration or publication of the testamentary instrument may be made by a third person with the assent, or at the special request, of the testator, and if a publication, direct or constructive, is so made in the presence of the testator, it satisfies the statutory requirement as to publication.^^ The maxim, "Semper qui non prohibet pro se intervenirc, mandare creditur," °' relates to passive conduct of the testator, while the maxim, " quod facit per alium facit se," applies to active conduct of the testator in respect of acts constituting a publication. The publication of a will must be in the presence of iboth the attesting witnesses,^* but the declaration or publication may be made to eaah of them independently.^'^ A direct or a constructive pulblication must be made out clearly and unequivocally, and there ^8 § 33, supra; Remsen v. Brinker- ^"^ Matter of Kennedy, 167 N. Y- hoff, 26 Wend. ,3215, 332; Nipper v. 163. Groesbeck, 23 Barb. 670; Lewis v. ^i Gilbert v. Rnox, 52 N. Y. 125. Lewis, II N. Y. 220, 226; Coffin v. 62 Qjibert v. Knox, 52 N. Y. 125,. Coffin, 23 id. I, 15,; Thompson v. 129; Matter of Nelson, 141 id. 152; Stevens, 62 id. 634; Dack v. Dack, Matter of McGraw, 9 App. Div. 84 id. 663, 665; Lane v. Lane, 95 id. 372; Matter of Carey, 24 id. 531, 494, 498, 499; Matter of Beckett, 539; Matter of Menge, 13 Misc. SS3; 103 id. 167, 174; Matter of Hunt, Matter of Murphy, 15 id. 208. 1 10 id. 278, 281 ; Matter of Harden- ^3 Ulpian : He who knows and burg, 8s Hun, 580, 587; Matter of does not prohibit what is done on Voorhis, 125 N. Y. 765, 767; Matter his behalf is taken to command it. of Balmforth, 133 App. Div. 521 ; ^4 Seymour v. Van Wyck, 6 N. Y.. Matter of Burnsee, 141 N. Y. 389; 120; Matter of Sarasohn, 47 Misc. Matter of Luthgen, 61 Misc. 544; 535. Matter of De Hart, 67 Misc. 13. 65 Barry v. Brown, 2 Dem. 309;. 60 Lewis V. Lewis, 11 N. Y. at p. Matter of Diefenthaler, 39 Misc. 2t27; Lane v. Lane, 95 id. at p. 499; 765. Matter of Buel, 44 App. Div. 4 ; Mat- ter of Wilde, 38 Misc. 149. ^ 21 Execution of Wills 125 must be no doubt on the evidence that the testamentary character of the instrument was communicated in some way by the testator to the attesting witnesses, or else the instrument cannot be estab- lished as a will.^" Where a testator produces to attesting witnesses a will open, with his signature visible thereon, and states in substance to them that it is bis will and be desires them to 'Witness it, this is sufficient publication and declaration of testator's subscription so as to satisfy both the second and third subdivisions of this section of the present Wills Act." If a will is holographic, or in testator's own handwriting, the evi- dence of publication may be slight, although publication must still be made out in some way to comply with the statute.'^ In other words, the mere fact that a will is now holographic is not sufficient evidence of publication under the present statute. Under the old law, on the other hand, as Swinburne states, " if it be certain or undoubted that the testament is written * * * with the testator's own hand * * * t;he testimony of witnesses is not necessary.^' So the civil law made a distinction between wills hoJographiiC and allographic, and if they were in the testator's own handwriting or holographic the absence of signature even was not fatal."" The timie when the publication of a will shall be made by the testator under the statute is prescribed by this subdivision of this section with some particularity.*^ It is either at the time of the making of the subscription or when the testator declares suoh sub- scription to be his own. But this part of the section being directory is under the decisions of the courts not to .be construed too literally, but is to be taken with reference to the intention oif the statute. 56 Rutherford v. Rutherford, i 267; Matter of Beckett, 103 id. 167; Denio, 33; Hunt v. Mootrie, 3 Matter of Hunt, no id. 278, 281; Bradf. 322; Matter of Delprat, 27 Matter of Turrel, 166 id. 330; Matter Misc. 355 ; Matter of Lyman, 14 id. of Moore, 109 App. Div. 762, 765 ; 352; Kingsley V. Blanchard, 66 Barb. Matter of Care)', 24 id. 531, 539; 317. Matter of De Hart, 67 Misc. 13, 18. 6'Baskin v. Biaskin, 36 N. Y. 416; 69 Quoted, 4 Burns, Eccles. Law, Matter of Hunt, no id. 278, 282; 123. Matter of Landy, 161 id. 429; Matter «° C. 6, 23, 21 pr. of Murphy, 15 Misc. 208, 212 ; Matter ^ Subd. 3, § 21, Decedent Estate of Balmforth, 133 App. Div. 521. Law. 68 Matter of Phillips, 98 N. Y. 126 The Decedent Estate Law § 21 The civil law required all the formal proceedings prescribed by the law for a testament to be uninterrupted and without the mingling of unnecessary foreign matters. The unity of the transac- tion — " unit as actus" as it was called — did not, however, relate to the preparation of the will, but to the formal execution, such as pulblication before the assembled witnesses, signing, sealing, and the subscription or subsignation and subsealing of the witnesses. All these must take place on one occasion, " unitas actus." In the words of the civilians the " testamentation must be exclusive and a unit." In the English ecclesiastical law there is no doubt that this unity of form'alities came to be too much neglected. Swin- burne quaintly admits as much when he says, " of this kind of (formal Roman) testaments we have no use in England,"'^ and in substance he intimates that much cunning and craft must have been practiced by the later Latins to cause such a departure from the more liberal rule announced by Ulpian. It was no doixbt the intention of the great revisers of the New York statutes in 1830 to guard against fraud and cunning, and for this reason! they too departed from the contemporaneous English laxity which they thought bad too long prevailed both before and after the Statute of Frauds. The revisers, therefore, had regard to what the courts now call " contemporaneity in the whole transaction," °' which is nothing else than the "unitas actus" of the civilians. They re- quired a publication at the time of execution. For the purpose of the present statute, the formal part of tlie execution is regarded as one transaction, and the testator's declaration, aliter publication of a last will, may be made at any time while the attesting witnesses are actually assembled."* But a publication of a will cannot be made on a subsequent occasion,"^ or, in other words, after the trans- actions attending the execution of the will are completely at an end «2 Swinburne, pt. i, § 9, p. 64. p. 159; Matter of Balmforth, 133 8' Jackson v. Jackson, 33 N. Y. at Aipp. Div. at p. 523; Matter of Wil- p. 159; Matter of Williams, 2 liams, 2 Connolly, 579; In re Kar- Connioly 579; Maitter of Gamber, 53 rer's Will, u8 N. Y. Supp. 4217. Misc. 168 ; Matter of Phillips, 98 *5 Matter of Moore, 109 App. Div. M. Y. 267; Matter of Beckett, 103 762, 765; Matter of Dale, 56 Hun, id. 167; Matter of Collins, 5 Redf. 169. Cf. In re Karrer's Will, 118 20. Cf. Matter of Baldwin, 67 Misc. N. Y. Supp. 427; Matter of Baldwin, 329. 67 Misc. 329. 6* Jackson v. Jackson, 33 N. Y. at § 21 Execution of Wills 127 by disruption. In the civil law the formalities ended when all the witnesses had signed and sealed the will.^^ A more liberal rule would probably be more consonant with the old laxity of the common law, and would fix the ending of the " transaction " lat the final departure of the intending testator or the witnesses ; although, if after the execution of the will the assem- bled testator and witnesses should indulge in a friendly game or go together to dinner in the same house, the time of departure of the witnesses would doubtless be immaterial, and their pu)blic duties as attesting witnesses would be regarded as ending with their sub- signation and according to the principles of the civilians. There is, however, notliing in the statute to prevent the re- assembling of the witnesses to a defective execution and a repub- lication of the will; the prior subscription and subsignations being then formally ratified by all the actors in the prior transaction.*'' It would, indeed, be a harsh statute where a different construction prevailed. Doubtless in England the great judicial desire of equity to give effect to the apparent will of the dead has led to a liberality in regard to execution of wills which is not in accord with the pre- cision required by the present New York Statute of Wills. But even here, tftiat necessary precision will not be iosisted on to ex- tremes, as the decisions show."^ Attesting Witnesses. The statute prescribes that there shall he at least two attesting witnesses, each of zvhom shall sign his name as a witness, at the end of the will, at the request of the testator. ^^ An attesting witness has been a very important part of the exe- cution of a last will or testament from the very earliest times. The present necessity of witnesses is perhaps traditional and due orig- inally to the Roman or civil law. The making of a testament was regarded by the civilians as a public, rather than a private, act, and «6 Const. 21, pr. C, 6, 23. 78; Matter of Stewart's Will, 2 «'/n re Karrer's Will, 118 N. Y. Redf. 77; Matter of Baldwin, 67 Supp. 427; Matter of Hardenburg, Misc. 329. 85 Hun, 580, 587 ; Graham's Will, 9 «' § 21, Deced'etiit Estate Law, N. Y. Supp. 12a. subd. 4 esvaughani v. Burford, 3 Bradf. 128 The Decedent Estate Law § 21 consequently it depended on the public law. Papinian so said: " Testamenti f actio, non privati, sed publici juris est." '" The civil law required seven male witnesses to a written will in the time of Justinian, and it required full legal capacity on the part of all such witnesses.^^ A dumb or a blind person, a minor, and slaves lacked capacity, and so those convicted of crime; and even those who were disreputable and unworthy of belief were incom- petent. PauJus states also that the witnesses to a will must be able to write their own signatures.'^^ But a Constitution ultimately re- duced the number necessary for a country will to less than seven, as seven witnesses, who were able to write and of full capacity in other ways, were difficult to find on an exigency in rural conmuni- ties. The civil law required also that the witnesses be disinterested persons, or else they lacked capacity and the will witnessed by them was insufficiently executed. A woman could not be a witness to a Roman will'^ and the common law also excluded them. Many of the exacting requirements of the civil law in regard to testaments crept into the early English law or were imported by the ecclesiastics. But in England the rules for testamentation grew lax with time. Swinburne states that women could be witnesses. The ecclesiastical law of England first reduced the n;um Fr. 3, D 28, r. 's j p. will. 13. ■'i § 6, Inst. 2, 10. '6 See text of Statute, Appendix '2Fr. 30, D. 28, I. IV, Fowler, Pers. Prop. Law (2d 'SFr. 20, § 6, D. 28, I. ed.). '^Swinburne, pt. i, § 9, pi. 64; "l R. L. 364. ibid. pt. IV, § 21. § 21 Execution of Wills 129 messes if we have regard to mere derivation: (Lait. attestor, ari). An attesting witness to a will is, on the other ihand, in law, a formal witness, or one who by the testator's request takes speciial cog- nizance of an act which is of a public or quasi public nature, and then attests it formally by his signature or suibscription in the man- ner required by positive law.'^ Under the present law to constitute an attesting witness to a will there must be a request made to him, by or on the part of the tes- tator, to the effect that he will act in that capacity.^'' Among the Latins such a request w,as necessary, according to the Roman or civil law, in order to qualify a witness to a will.'" In some form the Roman law of wills became higlily authoritative in England even prior to the Conquest.*^ But the principles of the Justinian civil or Roman law of wills were finally relaxed, and Swinburne labors to show that the informal wills of England correspond rather with the testamients of the Romans in the earlier times of Ulpian.*^ Even after the Statute of Frauds an " unsolemn will " seems to have been tolerated in England to a great extent, and in none of the older cases reported does the testator's request to the witnesses figure much as an element in determining the factum of a will.'' There seems to have been a presumption of request from the mere act of subsignation by the witness, if animus testandi was once established, for the old law of England was very tolerant of in- formal or unsolemn wills and testaments.'* The revisers of the Revised Statutes were not so tolerant. They seem to have had the civil law in mind rather than the English law. The present statute taken from the Revised Statutes requires a request by the testator to the witnesses to act as such.'^ So did the Roman law. The English Wills Act of 1837 did not require it. A request to act as witness, made to one who actually attests '8 Matter of Clute, 37 Misc. 586, 4, § 25, and see Bacon Abr. tit. 588; Matter of Mackay, no N. Y. Wills & Testaments, "D of Wills 611. in Writing." " Subd. 4, § 21, Decedent Estate ^s The Wills Act, i Vict. chap. 26, Law. passed in 1837, does not require a '" Fr. 21, f. 2, D. 28, I. request of witnesses by testator. 81 Duck, De Usu et Authoritate ** Supra, pp. 107, 128. Juris Cij'ilis Romanorum (ed. 1654). 85 gyhd. 4, § 21, Decedent Estate Cf. 2 Black Comm. 520. Law. 82 Swinburne, pt I, § 10 ; ibid. pt. 9 130 The Decedent Estate Law § 21 the w'ili in the precise manner prescribed by the present New York statute, may, however, be proven with less particularity than the other elements of factum, such as subscription and publication.^* The statute now in force does not prescribe the manner and form for such reqiuiest to the witnesses; nor does it prescribe the facts which shall be evidential of such a request. No precise form of words is, therefore, requisite. Any evidence which imports such a request is probably sufficient, at least in cases where there is no fraud and the other elements of factum are determined to co- exist.**^ In numerous decisions the element of special request to attesting witnesses has been presumed, in the aibsence of fraud, from circumstances which are only indirectly evidential of such a request by testator.** That such decisions are just is apparent, if we have regard to the object of the statute in requiring a request from the testator to the attesting witnesses. It has been held to be the prevention of an " officious signing by the witnesses without any privity with the testator." '" Consequently when animus testandi is apparent, by evidence of a subscription on the part of the testator and a pub- lication of a testamentary paper in due form in the presence of the actual attesting witnesses, it is not a violent presumption, that such attesting witnesses were those requested by testator to act as thie attesting witnesses; at least in cases where no fraud is charged and proved."" But, nevertheless, under the statute of New York there must be some evidence of testator's request to the at- testing witnesses to act as such, or the statute is not complied with, and factum of the will is deemed not to be established."^ 86 Butler V. Benson, i Barb. 526; 372, 382; Matter of Menge, 13 Misc. Doe V. Doe, 2 id. 200; Brown v. 553, 556; Matter of Murphy, 15 id. De Selding, 4 Sandf . 10. 208 ; Matter of De Hart, 67 id. 13. 87 Coffin V. Coffin, 23 N". Y. at p. ss Peck v. Ca.ry, 27 N. Y. at p. iG; Hutchings v. Cochrane, 2 Bradf. 26. 29s. 296. soBelding v. Leichardt, 56 N. Y. 88 Matter of Lapham, 37 Hun, 15; 680; In re Stewart's Will, 2 Redf. Coffin v. Coffin, 23 N. Y. at p. 17; 68. B elding v. Leichardt, 56 id. 680; 9i Tarrant v. Ware, note, 25 N. Y. Brady v. McCrosson, 5 Redf. 431; at p. 429; Chaffee v. Baptist Miis- Hutchings v. Cochrane, 2 Bradf. sionary Convention, 10 Paige at p. 29s; Matter of Woolsey, 17 Misc. 91; Matter of Hewitt, 91 N. Y. at 547 ; Matter of McGraw, 9 App. Div. p. 263 ; Neugent v. Neugent, 2 Redf. § 21 Execution of Wills 131 The necessary request by the testator to give capacity to witnesses as attesting witnesses may be made by another in the testator's presence, and if so made without any dissient on testator's part such request is to be taken in law, on the principles heretofore stated,^^ as the request of the testator himself."' The reading aloud by the testator, or in his presence, at the time of execution, of a properly drawn attestation clause^* is generally conclusive evi- dence of testator's request to the witnesses to act as sttch,"' as it is of publication, and even of a declaration of a prior subscription by testator.®^ It is for this reason among others that an attestation clause should, if possible and convenient, always be placed at the end of a will, and at the time of the execution of the will such clause should be read over aloud in the hearing of the witnesses and the testator.'^ But this is not indispensable.'^ Under the fourth suibdivision of the present section of the Statute of Wills,'' the attesting witnesses must sign their names or make thieir marks at the end of the will,^ and they must sign after the testator^ and in his presence," in order to be attesting witnesses.* But it is not indispensable that the attesting witnesses 'should sign in the presence of each other.^ Attestation Clause. An attestation clause or certificate, an- nexed to a will, is a matter of legal precision and ordinary precau- tion, and not a matter of law. One form of such a clause, 369 ; Matter of Lyman, 14 Misc. 352, '^ § 21, Decedent Estate Law. 360; Burke v. Nolan, i Dem. 436; 1 Matter of Hewitt, 91 N. Y. 261, Stein V. Wilziniski, 4 Redf . 41411 ; 263 ; Mock v. Gairson, 84 App. Div. Matter of Kivlira, 37 Misc. 187. 65. s2 Supra, p. 124. 2 Jackson v. Jackson, 39 N. Y. S3 Gilbert v. Knox, 52 N. Y. las; 153; Sisters of Charity v. Kelley, Matter of Nelsion, 141 id. 152, 157. 67 id. 409, 4I3- Sed cf. In re Kar- 9* See such a clause, note 91, p. 114, rer's Will, ir8 N. Y. Supp. 427. supra, 3 Hoysradt v. Kingman, 22 N. Y. 95 Matter of Stewart's Will, 2 372. Redf. 77. '^ Supra, p. 129. 96 Matter of Nelson, 141 N. Y. s Hoysradt v. Kingman, 22 N. Y. 152, 157. 372; Willis V. Mott, 36 id. 486; Mat- s' See reported note to Brinfcer- ter of Phillips, 34 Misc. 442; Matter hoff V. Remsen, 8 Paige at p. 499. of Diefenthaler, 39 id. 765 ; Matter 98 See below "AtteS'tation Clause." of Engler, 56 id. 218. 133 The Decedent Estate Law § 21 commonly used in practice, will be found at a prior page.' An at- testation clause is not a part of a will, and is not necessary to give validity to a will' The important statement in Mr. Redfield's excel- lent work, that in the absence of an attestation clause there is never a presumption of due execution, publication, etc., of a will, is not justified, and has lately been criticised.® Yet reading an attes- tation clause aloud to tJie assembled witnesses is, as we have seen, evidence not only of testator's subscription, but of publication and of testator's request to subscribing witnesses. It is not, howiever, in these aspects alone that the presence of an attestation cfeuse may be important to probate or on an issue of factum of a will. In the event of the death of the attesting witnesses it may become per se evidence of a high order." The certificate of attestation annexed to a will is not, howiever, equivalent to the testimony of a deceased attesting witness, if such evidence were obtainable. It is evidence only to some extent of the facts stated in it, and the force of such evidence Will depend on the circumstances of the particular case.^° But with very slight proof of confirmatory circumstances, a full certificate of attestation attached to a will may be highly evidential of the matters therein certified.^^ Wihere the certificate of attestation attached to the will is full and icomplete, and is subsigned by the attesting wiitnesses them- selves, it may serve as evidence, if corroborated, to contradict the testimony of even the subscribing witnesses if their evidence is to the contrary of the matter contained in such certificate.^^ Indeed ^ Supra, p. 114, note 91. i^Orser v. Orser, 24 N. Y. gj; ''Matter of Abel, 136 App. Mv. Matter of Nelson, 141 id. iga; Mat- 788; Jackson v. Jackson, 39 N. Y. ter of Abel, 136 App. Div. 788. 153, 159; Matter of Phillips, 9S u Woolley v. WooUey, 95 N. Y. at id. 267; Matter of Burke's Will, 2 p. 235; Matter of Burosee, 141 id. Redf. 239; Matter of Cornell, 89 389; Matter of Abel, 136 App. Div. App. Div. 412. 788. 8 Redfield, Surrogate's Practice 12 Brinkerhoff v. Remsen, 8 Paige, (Sth ed.) p. 171; § 203, 7th ed. id.; 488; Trustees of Auburn Seminary Matter of Abel, 136 App. Div. at p. 791. v. Calhoun, 25 N. Y. 422; Dack v. 9 Jackson v. Jackson, 39 N. Y. 153, Dack, 84 id. 663, 665; Matter of 159; Matter of Abel. 136 App. Div. 788; Will of Cottrell, 95 id. 329, 335; Matter of Ellery, 139 App. Div. 244. Matter of Nelson, 141 id. at p. 156; § 21 Execution of Wills 133 it is now said that in the absence of any other proofs a full and contemporaneous certificate of attestation attached to the will may, on due proof of the siignatures of the deceased witnesses, be suffi- cient evidence to afford a presumption of factum of a will under the existing statute,^' and this is certainly true where there are any corroborative circumstances/* Whether the custody of the will may not be a corroborative circumstance is not, however, decided in this State. The proper ^custody of a document where the sub- scribing witnesses are all dead is, however, a very important con- sideration for courts on an issue of factum, or non est factum, of a deed or will. For it must appear in all such oases that the paper writing oomes from such custody as is sufficient to afford a reason- able presumpti'on of genuineness.^^ But the formal execution of a will can not in any event be presumed, in opposition to positive testimony, merely upon the ground that the attestation clause is in due form.^^ The attendance of a lawyer in charge of the execution of a will affords, in connection with a fuU and complete certificate of attes- tation, some presumption of a strict adherence to the forms required by law.^^ And even where such certificate is defective in some respects, the attendance of the professional man, in charge of the formal execution of the will, will serve to negative the presump- tion arising from an omission in the certificate.^^ The proofs of due execution oi a will can be made out through the evidence of the professional man in attendance and in charge of the execution of the will, even if he is not an attesting wi'tness.^* Matter of Burnsee, 141 id. 389; ^^ Cf. Matter of Abel, 136 App. Matter of Cornell, 89 App. Div. 412; Div. 788. Matter of Carey, 14 Misc. 486, 490; i^WooUey v. WooUey, 95 N. Y. Matter of Walker, 67 id. 6. 231 ; Matter of Balmforth, 60 13 Matter of Sizer, 129 App. Div. Misc. 492. 7, 10; Matter of Abel, 136 id. 788, "Matter of Will of Cottrell, 95 792. N. Y. at p. 339; Worden v. Van 1* Matter of Foley, 55 Misc. 162, Giesen, 6 Dem. at pp. 238, 239 ; Mat- 167; Matter of Kellum, 52 N. Y. ter of Walker, 67 Misc. 6. 517; Matter of Abel, 136 App. Div. "Matter of Nelson, 141 N. Y. 152. 788. Sed cf. Matter of Kennedy, " Holcomb v. Harris, 166 N. Y. 167 N. Y. 163, as to how far testa- 257, 263; Matter of Cornell, 89 App. tor's own declaration may be re- Div. 412. garded as corroborative. 134 The Decedent Estate Law § 21 Where be is an attesting witness no question of conifidiential com- munication can arise, as by making him an attesting witness there is a waiver of confidence and a qualification of the witness even if otherwise incompetent.^" Republication of Wills by Codicils. It is still the law that a codicil may constitute, as before the Revised Statutes, a repubHca- tion of an original will or prior codicil, but it seems only if such original will or prior codicil is executed with all the formalities now prescribed by the statute for an act of testamentation. It is said that a subsequent duly executed codicil does not now operate to publish a defectively executed will or prior codicil.^^ By the old law before the Revised Statutes a codicil duly executed operated as a republi- cation of a prior will.^^ But a codicil did not have the effect of republishing a will of lands which was not duly executed and attested.^* Codicils. The Revised Statutes provided that the term " will " as used in the chapter (VI) on wills and testaments should include all codicils, as well as wills.^* And this purported to be only a revi- sion of the prior Statute of Wills. ^° The Legislature has since, in the chapter of the Code of Civil Procedure, relating to surrogates, again recognized codicils to wills as existing in practice.^" But no statute of the State defines a codicil, and, therefore, by well estab- ^f Matter of . Nielson, 141 N. Y. writing Matter of Emmons, supra, 152, ISS- seems to be the only direct authority 21 Lovelass on Wills, 373 ; Brown on this point, and no appeal to the V. Clark, 77 N. Y. 369; Matter of Court of Appeals -was taken in that Emmons, no App. Div. 701; Matter case. Cf. Matter of Douglass, 38 of Carll, 318 Misc. 471, 475, an'd see Misc. 609. intimation of a distinction between 22 Van Cortlandt v. Kip, i Hill, proper and defective execution of SQO. in error 7 Hill, 346, and see original : Matter of Andrews, 43 Lovelass on Wills 373, citing aU the App. Div., pp. 400, 401 ; affd., 162 old leading cases. N. Y. I ; Matter of Conway, 124 23 Lovelass on Wills, citing Atty.- N. Y. at p. 463, and Matter of Gen. v. Barnes, 3 Rep. Cha. 81; Campbell, 170 id. at p. 87 (but see Pre. Chan. 270. also Caulfield v. Sullivan, 83 id. at 243 R. S. 68, § 71. p. 161, to the effect that the pro- ^R. L. (of 1813) § 20. See note visions of will may be regarded as to first ed. R. S. embodied in codicil and executed at 26 § 3514, subd. 4. the same time). At the present § 21 Codicils 135 lished principles of construction the definition of codicil is con- trolled by the common law. In the civil law a codicil was an in- formal will, and the appointment of an heir could not in that sys- tem be made by codicil.-^ But this distinction, though at first recognized to some extent by the ecclesiastical lawyers of England,^' was ultimately abandoned, and a " codicil " was finally defined in law as a foi-mal supplement to a will, and it 'bad to be executed ,with all the formalities required by the Statute of Frauds in respect of a wil'l.'*'^ At the present day a codicil must be executed with all the formalities essential to a will under the statute now in fonce, a:nd it no longer makes any difference whether suc'h codicil relates to real property or to personal property. The rule as regards both kinds of codicils is the same.'" If a codicil is duly executed it operates as a republication of the original will, if that has been also executed in accoTdance with the statute.^^ But, at 'this writing, it seems that it does not operate as a publication of a prior will or testamentary writing which is informally or defectively attested.^^ Not only does a codicil, duly executed, operate as a republication of an original will also duly executed but it is to be taken as part oi such will for purposes of construction. All testam'entary instru- ments must be construed together and their separate dispositions reconciled if possible.^^ But if irreconcilable or inconsistent the codicil, as the latest disposition, controls, and it may operate as a constructive or pro tanto revacation,^^ or as a revocation of a later will and the revival and republication of an earlier one.^'' 2' Supra, p. 2, Introduction. 34, Decedent Estate Law, Revocation 881 Williajms on Exrs. (ed. 1838) and Republication. 7. Cf. Matter of Davis, 45 Misc. ^2 Matter of Emmons, no App. 554, Div. 701; Matter of Carll, 38 Misc. 29 Lea v. Libb, 3 Carth. 35 ; 3 Mod. 47i, 47S- See note 21, p. 134, supra. 262; Mooers v. White, 6 Johns Ch. '' ^ard y. Ashley, 117 N. Y. 606. 360, 375; Brown v. Clark, 77 N. Y. ^Y' ^r'^'^'" ^; Coddington, 154 id. ^ ' 283; Matter of Tompkms, 154 id. of^ V TT 1, T> t, 634; Herzog v. Title Guarantee & 30Burhat.s v. Haswell, 43 Barb. ^^^ ^^_ «^ .^ gg_ 424; Brown v. Clark, 77 N. Y. 369. 34Wetinore v. Parker, 52 N. Y. ST"' 450; Burnham v. Comfort, 108 id. siCanfield v. Crandall, 4 Dem. 5^,5 . Redfield v. Redfield, 126 id. Ill, 119; Langdon v. Astor's Exec- 466; Matter of Campbell, 170 id. •utors, 16 N. Y. 9, 57; Matter of 84, 87. Campbell, 170 id. 84. See under § ^^VLaMcr of Campbell, 170 N. Y. 136 The Decedent Estate Law § 21 Conjoint or Mutual Wills. A conjoint or mutual will executed by two or more persons, in conformity with the Statute of Wills, is valid and binding, and may be admitted to probate on the decease of any one of the parties. Such a will operates as the separate will of whomsoever dies first.^® Conditional Wills. A will may be on its face conditional, and in that event takes effect only on the happening of the specified con- ditian.^' But the condition can not be annexed subsequently to execution, unless the will is re-executed or regularly revoked.'* Duplicate Wills. A will may be executed in parts, duplicate or triplicate. On a probate it is proper that all the parts be exhibited, so as to prove that they are alike, and that no part has been revoked, for the revocation of one part is the revocation of all.'" Disposal of Estates by Will and Testament. Having glanced at the legal requirements for a last will and testament, under the present Statute of Wills, we may next briefly consider what estates and interests may now pass by will or bequest in this State, and first the estates and interests in real property. Real property may now be conveyed by devise under the Statute of WiHs.*" But it must conform to the statute regulating estates, for a devise remains primarily a conveyance as before the Revised Statutes.*^ We have seen that every estate and interest in real property, which can descend to heirs, may be devised to any one testator sees fit, and even to the total disinherison of his heirs.^^ But it may 84. Cf. Matter of Frost, 38 Misc. « § n^ supra. 404; Matter of Farmers' Loan & « See p. 26, supra; i Bullet's Nisi Trust Co., 138 App. Div. 121. Prius 245, citing i Roll. 678; Van 36 £^ parte Day, i Bradf. 476; ^Ist v. Hunter, 5 Johns. Ch. 148, Matter of Will of Diez, 50 N. Y. j^^. R^g^j.^ ^_ ^os^^, 3 Wend. "" Matter of Forman's Will S4 ^,^ ^,^. Anderson v. Anderson, 112 N. Y. at p. 113; Oooley v. Mc- Barb. 274; Ex parte McCofrmick, 2 Bradf. 169. „, , .^, „ „ „. 37 £^ parte Lindsay, 2 Bradf. 204. ^'™^^'' '49 N. Y. 228, 23S; Dixon 38 Matter of Goldsticker, 123 App. ^- ^ozme, 64 Misc. 602. Div. 474, affd., 192 N. Y. 315. « § n. Decedent Estate Law. 39 Grossman v. Grossman, 9.5 N. Y. 145- ■§ 21 Scheme of a Will 137 be devised for estates or interests only pursuant to the rules set forth in the " Real Property Law " which now regulates the crea- tion and the division of estates in lands.*'' It is a question whether that statute ever contemplated regulating the unrestricted assign- ment of existing lawful estates, for they can not be said to be : created or divided, and the statute treats only of the creation and > division of estates. For example, if A, lawfully seised of an es- tate in fee simple, assigns or devises such estate in fee simple with- out restriction to B, a living person, no new estate is thereby created or divided, but B, on A's death, succeeds to all the rights and liabiHties oi A in respect of such existing estate in fee simple.** As there can now be no restraint on the power of alienation of any owner of an estate in fee simple absolute, A's right to so devise is implied by the estate conveyed, and if B is a citizen of the United States he has full capacity to take sudh estate by devise, and there can be no inherent question of invalidity arising on any such devise. But if A desires to carve out of bis fee simple estate any lesser estate than his own, or to limit derivative estates out of his fee simple, then the " Real Property Law " will determine their validity, and the limitations by testator must conform to the rules prescribed by that law, if be wishes to have bis will effective. Estates in land are now tliose interests in real property which are recognized by the courts of law and which the common law protects, as the Revised Statutes abolished " equitable estates " in this State.*" We shall next consider what limitations of estates are now valid by the present rules regulating estates. General Scheme of a Will. If an intending testator, seised of a fee simple, desires to give life estates, carved out of such fee simple, and wishes to retain the reversion, if undevised the re- version will pass to hiis heirs-at-ilaw. If he desires to wiLl thei reversion also he may do so at his pleasure, as it is always a vested estate. If the testator desires to limit successive life estates by will to persons in existence, without contingency and for their own *3 Chap, so, Consolidated Laws of *5 1 R. S. 729, § 60, now § 100. 1909 Real Prop. Law. ** Fowkr's Real Prop. Law, (3id ed.) 145. 138 The Decedent Estate Law § 21 lives, then ibe must t>e careful not to violate those rules of the statute which now regulate the limitation of successive vested life estates.*" If on the other hand he desires to give Efe estates to persons only on some contingency, or so that such life estates will not vest at his death, then he must be careful not to violate the existing rule against a perpetuity.*'' If he desires to limit estates for the life of others than the devisee, then testator must have regard to the sections regulating estates pur autre vie.^^ The stat- utory rules governing limitations of estate in this State since the Revised Statutes are simpler than the old rules then abolished. On the other hand, if a testator wishes to give legal estates to trustees on trusts allowed by the Revised Statutes, he must be careful not to offend against the statutory rules now governimig trusts of lands.*" If he wishes to give away a power to deal with the title to the estate in future, he must 'have careful reference to the present article on Powers.^" In the eighty years which have elapsed since the iCnactment of the Revised Statutes most of its provisions have been passed on by the courts in a series of wise and' painstaking decisions, and a har- monious law of real property consequently now exists in this State. But awing to the multifarious exigencies of humian affairs there is sometimes even yet a clash or conflict between the old common law and the statutes, and thai until the courts apply the right prin- ciples some confusion in the law of property necessarily ensues. But on the wboile this State has now a law of property -which it has reason to be proud of, as it has proved to be well adapted to its various and complex needs and also to the wellbeing of the people of the State. In any settlement of an estate, whether by devise or other con- veyance, the settlor must have constant reference to the revised rule against perpetuities,' as first stated in the Revised Statutes but now expressed in the Real Property Law. This rule, it will be remembered, precludes any creation or limitation of a future es- tate which suspends the power of alienation beyond two lives in being, except that a contingent remainder in fee may be created on *s §§ 43, 47, Real Prop. Law. <9 Art. 4, Real Prop. Law. *' § 42, Real Prop Law. m A,rt. 5, Real Prop. Law. *8 §§ 34, 44, Real Prop. Law. § 21 Life Estates 139 a prior remainder in fee to take effect in the event that the persons laking the first remainder die under full age.'^ Life Estates for Devisee's Own Life. If a testator wishes to •devise his estate in fee simple for life estates to a person or per- sons in being to hold for life of devisees, with remainder over in fee, the Real Property Law now precludes the limitation or creation of miore than two such particular life estates to persons in 'being, supporting the remainder in fee simple.°^ But if a testator has more children than two, there is nothing to prevent his subdivid- ing his estate into parcels and giving each parcel for estates for two lives in being, with unrestricted remainders over in fet simple to whomsoever he may please.^" If the testator should limit more than two successive life estates to persons in ibeing, all such life estates, beyond the first two, are void in their creation, and the remainder in fee, if vested, is accel- erated or takes effect on the expiration of the two first successive life estates.^* If no remainder is limited after the life estates, the rule would be the .same as to the reversion,^' which would take ■effect in possession after the effluxion of the first two life estates ; the statute declaring all the other life estates void irrespective of the character of any ultimate limitations. Any number of successive vested life estates does not suspend the power of alienation, but those beyond two are prohibited by the statute regulating the limi- tation of successive life estates.^" The limitation of any number of successive vested life estates lias no tendency to a perpetuity, nor does a limitation of any num- ber of such estates aivoid the limitation of the tyv^o first, which re- miain valid.^' The statute only avoids those successive life estates beyond the two first permitted.''^ Cutting down the ntunber of suc- 51 § 43, Real Prop. Law ; Herzog ^^ A reversion may pass by the V. Title Guaranty & Trust Co., 177 name of remainder, or e converso; 2 K. Y. 86, 92. Preston, Abstracts, 8& 62 § 43, Real Prop. Law ; Purdy 66 § 43, Real Prop Law ; Purdy v. V. Hayt, 92 N. Y. at p. 451. Hayt, 92 N. Y. at p. 451. S3 Snedicor v. Congdon, 41 App. ^^ Woodruff v. Coke, 61 N. Y. Div. 433; Bailey v. Bailey, 97 N. Y. 638; Tiers v. Tiers, 98 id. 5168. 460, 470. Cf. City of Brooklyn v. 68 Purdy v. Hayt, 92 N. Y. at p. Seaman, 30 Misc. 507. 452. 64 § 45, Real Prop. Lr.w. 140 The Decedent Estate Law § 21 ces'sive life estates was one of the reforms of the common law made by the Revised Statutes. The old law permitted any num- ber of successive vested life estates to precede a remainder.''® Vested life estates, even if successive, are only particular estates whidh obviously do not exhaust the quantum of a fee simple. If two or more vested life estates are followed by contingent remain- ders to persons not in esse in fee, the contingent remainider may so suspend the power of alienation as to avoid the limitation, as the statute, it is said, does not accelerate contingent remainders."" When more tlian two vested life estates are followed by a vested remaiinder all the life estates in excess of tlie two first in order are void, and the vested remainder is then accelerated."'- But this acceleration cannot take place if the remjainders are to persons not in esse, and such remainders clearly are not accelerated by the statute."^ If more than two successive vested life estates are fol- lowed by contingent remainders, the limitation may be in whole or in part void."^ Successive Life Estates. The two successive life estates per- mitted by statute can be devised only to persons in being."* Yet there is since the Revised Statutes no direct rule of law which forbids a particular life estate to a person not in being, as the com- mon law prohibition against aibeyance of the seisin and the creation of estates of freehold to begin in futuro has been abrogated."^ At common law a remainder to the unborn child of a person in being could be limited for life or other particular estate."" But since the Revised Statutes remainder for life of such person to a person not in esse is an unlawful suspension of the power of alienation and void in the creation."^ Thus we perceive that the Revised Statutes substituted for many common-law rules relative to the creation of estates in futuro only the new sections directed against 69 Jackson ex dem. Nicol v. ^^ gge below, " Contingent Re- B'rown, 13 Wend. 437, 441. mainders." so Purdy v. Hayt, ga N. Y. at p. «* § 43, Real Prop. Law. 4Sa 65 § 50, Real Prop. Law. 61 Woodruff V. Cook, 61 N. Y. 638. 66 Williams v. Teale, 6 Hare, 239. 62 § 43, Real Property Law ; Purdy 67 § ^_ 'RtaX Prop. Law ; Kiah v. V. Hayt, 93 N. Y., at p. 452; Dana Grenier, i T. & C. 388, affd., 35 V. Murray, 122 id., at p. 618. N. Y. 220. § 21 * Estates Pur Autre Vie 141 perpetuities. Those sections furnish the main criterion of the vahdity of all future estates; the common law, or feudal, rules being wholly abrogated. Estates Pur Autre Vie. Estates pur autre vie, or for the life of others than the grantee of the estate, are but a qualification of estates for life of grantee, and probably arose originally by am assignment of such estates. But an estate pur autre vie need not now be cre- ated by assignment, but may arise by devise or by grant of the freehold to one to hold for the life of others than the grantee. Such estates are vaHd under th'e law of New York, but subject to the rules prescribed by the Real Property Law.°* If a testator de- sires to give an estate to hold for the life of anotlier than grantee, or for the joint lives of devisee and other persons, the remainder limited thereon must be in fee and cannot be for a successive estate pur autre vie.^^ An estate for the joint lives of grantee and others is for the life of the shortest liver,''° and is not now prohibited^ but if the estate is limited on the longest life of more than two per- sons the remainder or reversion takes effect on the death of the two cestuis que vie who 'happen to be first named in the limitation.'* Every remainder limited on any estate pur autre vie must be in fee.'^ Estates pur autre vie are commonly vested estates to per- sons in being and on the death of tenants pur autre vie, living cestuis que vie, they pass to personal representatives.'^ No question of perpetuity could arise at common law on an estate pur autre vie. Nor can it now so arise, although it may be devised to any number of persons not in esse, for it must in any event terminate on the death of the two cestuis que vie first named. We perceive a parallel in equity in the case of an express trust under the present statute of trusts. If limited for two lives in being the beneficiaries of such a trust may be any number of persons in esse or not in esse?* If successive life estaites are to be followed iby contingent re- 's Chap. 50, Consol. Laws of 1909. '^ § 34^ Real Prop. Law. 63 § 44, Real Prop. Law. '^Woodgate v. Fleet, 64 N. Y. '"Co. Litt. 416. 569; Crooke v. County of Kings, 97 '1 § 4S. Real Prop. Law. id. 4211, 439. '2 § 44, Real Prop. Law. 142 The Decedent Estate Law § 21 mainders, it behooves the draughtsman of such a will to have close reference to the present rule against perpetuities.'^ If Hfe estates are to be followed toy cross remainders, both this section and the section againsit perpetuities must be carefully con- sidered.'^ Remainders. Since the old Statute of Wills, remainders may be limited by devise as well as by deed or grant. Remainders, as at commion law, are still classified as either vested or contingent.''' When limited on life estates created by devise, vested remainders are generally former common-law remainders, in fee simple, and not executory interests or shifting fees or shifting uses, even since the Revised Statutes ; although the term " remainder " as now de- fined by statute is comprehensive enough to include the executory interests known formerly as " shifting uses " and " shifting de- vises." '^ But when the remainder is a " fee upon a fee " it is al- ways a former use or executory devise. A remainder is vested when there is a person ifi being who would have an immediate right to enjoy it in possession were the particu- lar estate presently to determine.'" Such was always the test at common law,'" and the definition by the statute of a vested remain- der is not essentially different from the common-law definition,'^ although the application of the statutory definition, by reason of ex- traneous new rules relative to particular estates supporting remain- ders, necessarily includes some remainders which were contingent by the common law with remainders vested under the statute.'^ Mr. Preston, one of the ablest of all the writers on the old real property law, admits suibsitantially that statutory changes in the common law of remainders, similar to those in New York, would have a like effect upon Fearne's well-known classification.'^ With this preliminary explanation, let us proceed to consider the effect '5 See below "Contingent Re- Preston, Abst. 108; Chatter, 56 j mainders." Moore v. Littel, 411 N. Y. 66, 72. '^ See below, " Cross Remainders." *' See cases cited Fowler, Real "§ 40, Real Prop. Law. Prop. Law (3 ed.), 245. '8 § 3^, Real Prop. Law. 82 Moore v. Littel, 41 N. Y. 66, 78. " § 40, Real Prop. Law. 83 1 Prest. Abstracts of Title, 107. *" Fearne, Conting. Rem. ai6; I § 21 Remainders 143 of the various limitations of remainders after life estates under the present statutes of this State. As the statute precludes limitations of remainders for life beyond two sucoessive life estates to persons in being, obviously any re- mainder of an estate of iniheritance beyond such two successive life estates must be one in fee.** If such a remainder in fee is to a determinate person, without any conditional limitation over, it is necessarily a vested remainder, and it descends to bis heirs in the event of death of remainderman' before majority.*^ Such a limitation is free from any element of illegiahty by either the common law or the present statute. There can be no possible objection, under the statute, to a Hmitation of a vested remainder in fee after two precedent life estates. AM the estates are immediately alienable for a fee simple. Thus an estate to my son A for his life, and at his death to my grandson B for life, remainder to the right heirs of B in fee simple when B has heirs in esse, is an unobjectionable and valid limitation of legal estates. If B has heirs in esse, such a remainder is now a vested remainder, subject to open and let in and to be divested by death during the continuation of the particular estates supporting the remainder.** Prior to the Revised Statutes a remainder to the heirs (as pur- chasers) of a living person was a contingent remainder, even though there were then persons in being designated as his " heirs presump- tive," for " nemo est heres mi'entis." ^'' But this result was due to the existing law of remainders, as the particular estate might determine before the heirs de jure of a person then living were ascertained.*^ The decision in Moore v. Littel,** making remainder to heirs of a living person vested, really made such remaiinders limitations to " a class " and subject to open and let in others of the class. The 8*§ 42, Real Prop. Law. s^pgarne, Conting. Rem. 9; 85 Radley v. Kuhn, 97 N. Y. 26, 36. Sheridan v. House, 4 Abb. Ct. App. 86 Moore v. Littel, 41 N. Y. 66, Dec. 218, 224. 86; Du Bois v. Ray, 35 id. 162, 176; ^^ Campbell v. Rawdoni, 18 N. Y. Sheridan v. House, 4 Keyes, 569; 412, 418. Dougherty v. Thompson, 167 N. Y. 8*41 N. Y. 66. 473, 487, overrulirug Knight v. Weatherwax, 7 Paige, 11812, and similar early cases. 144 The Decedent Estate Law § 21 part of the decision in Moore v. Littel, to the effect that the re- mainder to the heirs of A, a Hving person, as purchasers, although vested, was subject to open and let in any other children born to A during the continuation of the particular estate supporting the re- mainder, was in line with prior authority ."'' But the part of that decision, to the effect that the remainders once created divested by the death of the children of A before the determination of the par- ticular estate, is not consistent with prior authority,"^ although now very well settled kw and a rule of property in this State.'^ A hmitation of life estate to an ancestor and remainder to his heirs in esse, as parchasers, is, as we have seen, a common limita- tion in this State since the Revised Statutes and the decision in Moore v. Littel.'^ Sudi direct and simple limitations of remainders occasion no difficulty in practice; all the estates are vested and alienable for a fee simple and are distinctly authorized by the Re- vised Statutes and the present law. But in practice such direct limitations are often complicated by conditions or give place to limi- tations of fees def easiible on condition subsequent, followed by alter- native or posterior contingent limitations.^"* Whenever a testator desires to follow legal vested life estates to persons in being by contingent limitations of legal estates, he must have careful reference to several rules of the Real Property Law. To a single contingent remainder in fee, limited after two successive life estates, there is now no possible legal or equitable objection. The statute distinctly permits such a limitatioe.^^ Nor is there any possible objection to alternative contingent remainders so that only one may vest.°'' The legal difficulties are not concerned with such simple common- law remainders, but with limitations of a remainder in fee upon a pnLor defeasible remainder in fee or upon failure of issue and the like."' so Doe ex dem., etc., v. Provoost, 's 411 N. Y. 66. 4 Jotos. 61, 65; Van Vechten v. 9* See Fowler v. Depau, 26 Barb. Peajrsoni, s Paige, 512; Driver v. 224. Frank, 3 M. & S. 23. 95 §;§ ^^ 43^ Real Prop. Law. 91 Doe ex dem., etc., v. Provoost, 96 § 51^ Real Prop. Laiw. 4 Johns. 61 ; 8i Elphinstone's Intro- 97 See below, and 26 Law Quar. duction to Conveyancing (6th ed.), Rev. 239. 480. 92 Dougherty v. Thompson, 167 N. Y. 472, 487. § 21 Contingent Remainders 145 Contingent Remainders. A future estate is defined by the stat- ute as contingent when the person to whom or the event on which it is limited to take effect remain uncertain."^ This definition of contingent remainder, qua remainder, is not essentiadly different from the definition at common law,"* which was found to be not sufficiently exhaustive or inclusive of many executory interests.^ The definition at common law, it will be remembered, applied only to common-law remainders.^ As the Revised Statutes comprise many executory interests in the present definition of remainder,* and as they altered the entire law concerning the effect of the ter- mination of particular estates to support remainders,* it is not sur- prising that some confusion is exhibited in most attempts at classi- fication of contingent estates under the present statute, or that some remainders contingent at common law becamie remainders vested under our statute.'^ The accepted classification of contingent remainders at common law was due largely to the subtlety and in- dustry of Mr. Fearne.® But of Fearne's four classes of contingent remainders two, at least, depended on the old law of remainders and the possible premature destruction of particular estates to sup-^ port them,' which determination is now inconsequential since the Revised Statutes so far as the destruction or the vesting of re- mainders is concerned.^ Thus Mr. Fearne's celebrated classifica- tion of remainders has become very largely academic or irrelevant in New York to our present statute regulating estates in expec- tancy. 5' § 40, Real Prop. Law. ^ Preston states this in several S9 2 Black. Comm. 169 ; 4 Kent. places — and it is obviously true, if Comm. 206; Williams R. P. 267. we recall the brief history of the 1 Challis, R. P. 56 ; i Preston, contingencies, permissible in convey- Estates, 61. ancirug. 2 Fearne, Conting. Rem. 351 ' Fearne, Conting. Rem. 3 ; But- Preston, Abstracts of Title, 108; ler's note G, ibid. g. Crabb. R. P. § 2330. s §§ 57, 58, Real Prop. Law; Hen- 5 § 38, Real Prop. Law. nesy v. Patterson, 89 N. Y., at p. * §§ 50, 57, Real Prop. Law. 100. s Moore v. Littel-, 41 N. Y. 66. 10 146 The Decedent Estate Law § 21 Since the Revised Statutes contingent remainiders or estates may be classified substantially as follows : (i) Remainders or estates to persons not in esse' (2) Remainders or estates to survivors, at the determination of precedent estates, limited at the same time ais the estates in re- mainder.^" (3.) Remainders or estates to persons in being, but to vest only on the fulfilment of a condition precedent, expressed in the limita- tion, and which may or may not happen.^^ These now comprise all classes of contingent remainders or estates. The term " remainder " as used in the real property stat- utes of this State now includes not only common-law remainders but all former " shifting uses " and " devises." ^^ Whenever a limitation of the third class may operate to abridge the natural termination of the precedent estate it will, howiever, be found to be a conditional limitation,^^ and not a common-law re- mainder which could only follow the natural determination of the precedent estate.^* 9 Manice v. Manice, 43 N. Y. 303, 374; Losey v. Stanley, 145 id. 560, 567. 10 Cairmichael v. Carmichael, 4 Keyes, 3416; Hall v. Le France Fire Engine Co., 158 N. Y. 570. J^Cusbman v. Cushman, ii5 App. Mv. 7631, 770; citing Caw v. Robert- soo, 5 N. Y. 125, 13s; Moore v. Littel, 41 id. at p. 80. Contingent re- mainders of the third class are gen- erally alienable. Stringer v. Barker, no App. Diiv. 317, 39; Chaplin, Ex- press Trusts and Powers, § 386. i^KnowIton v. Atkins, 134 N. Y. sra 3118. *' § 53, Real Prop. Law. « 2 Preston, Abstracts of Title, 86; Butler's note K, vii, Fearne, Con- ting. Rem. 508; Leake on Property in Land, pt. 2, chap. 3; i Jarman on Wills, 780. It has always seemed to the writer that even Mr. Fearne was more influenced by the Statutes of Uses and Wills in his- treatment of common law remain>- ders, abridging particular estates, than he himself realized, and the present writer was therefore pleased lately to obsei've that Mr. Sanders intimated in substance that it ap- peared to him also, that limitations which operate so as to determine the preceding particular estate be- fore its regular expiration can only take effect as conditional limitations, and not as remainders. (See San- ders, Uses and Trusts, 155.) Mr. Preston S'eems clearly of that opin- ion, in the expressions employed in the first volume of his Treatise on Estates, pp. 40, 71. When Mr. Fearne wrote, it was the fashion among the great comreyancing counsel of England to resort in practice to the Statute of Uses for § 21 Contingent Remainders 147- In respect of the second class of contingent remainders, it will be noticed that there is since the Revised Statutes a great and fundamental difference between remainders to tluose who are the very heirs of a living person eo insianti^^ and remainder to those who will or may be the heirs of a living person at the time of the death of such living person.^^ Tlie former remainder, since the aboli'tion of the rule in Shelley's case, is now vested, as " heres viventis " on the present instant is now descriptio personarum, describing heirs presumptive under the statute. Such a limitation is no longer, as at common law, futuritive or indeterminate in signification.^^ The common-law maxim " nemo est heres viventis " is, since our statute of partible inheritances and the abolition of the rule in Shelley's case, equivalent to a limitation to the heir of X,, in the singular at common law which also made heir in the singular descriptio persona}^ Since the decision in M'oore v. Littel,^® every remainder to the heirs of a living person following life estate to parent has virtually become an anomalous remainder to a class,^" because although held to be vested as to the living heirs of the life tenant, yet such remainders are also held to open and let in the after-born heirs, and the shares of all remaindermen divest by death. effective limitations of estate, and tice. The late Mr. Challis was the; most settlements were then in the first modern writer who had a clear shape of conveyances to uses, rather conception of the old law of legal' than in the form of common law limitations, as contrasted with the limitations; although life estates modern law of uses. followed by estates tail and remain- i^ Moore v. Littel, 41 N. Y. (£■; ders over could be limited in a con- Matter of Lansing, 182 id. 238, 250., veyanoe to uses. After the Statute i^ Carmichael v. Carmichael, 4. of Uses the language of even com- Keyes, 346; Hall v. La France Fire- mon law limitations changed, and Engine Co., 158 N'. Y. 570; McGillis- from the time of the Civil Wars and v. McGillis, 154 id. 532. the restoration of the monarchy to i' Moore v. Littel, 41 N. Y. 66? the third decade of the nineteenth House v. Jackson, 50 id. 161 ; century, the Statute of Uses, with Sheridan v. House, 4 Abb. Ct. App. its amazing pissibilities, was the Dec. 318. basis of the real property law of ^^ Sugden, Gilbert on Uses, 40, 46.. England. Mr. Fearne, who started 1941 N. Y. 66. out to deal with common law limita- 2" Paget v. Melcher, 26 App. Div. tions only, was it seems to the 17; 156 N. Y. 404; Gilliam v. Guar- writer unconsciously influenced by anty Trust Co., iii App. Div. 656, the contemporary thought and prac- affd., 186 N. Y. 137. 148 The Decedent Estate Law § 21 ■without issue during the existence of the particular estate of the parent.^^ Other vested remainders do not divest by death of re- mainderman during the particular estate, but the remainderman is a new stock of descent, even without special limitation to the heirs of remainderman.^^ The distinction between vested remainder to heirs of life tenant and other vested remainders is too weU estab- lished in this State to be disturbed, as it is now a rule of property. Before proceeding to discuss the application of the present law regulating contingent dispositions of real pro'perty, let us consider the reasons of the law. A contingency always involves futurity and, th'erefore, uncertainty, and a limitation of an estate in ex- pectancy on a contingency necessarily tends to tying up titles to lands, to the admitted disadvantage of the commonwealth. But for the law to prohibit all limitations of estates, on conditions precedent, or on contingencies of any kind, would be to condemn rights over property to atrophy, and to make them inadequate for the needs of families. How to circumscribe the power within due bounds is the question. The revisers of the Revised Statutes detected readily that only those limitations on conditions or contingencies which un- duly suspended the power of immediate alienation were baneful to the public in any degree, and with a penetration and grasp of the fundamentals of property law, then almost unparalleled in extent, even in England, they prohibited in . consequence only those limi- tations on contingencies or conditions which suspended the power of alienation beyond a brief period of time.^' Otherwise any con- dition or contingency, not malum in se, was to be tolerated as the basis for limitations of future estates in real property.^* Formerly, at the common law, it followed from any contingency in a limitation that a remainderman on such contingency had no 21 Manhattan Real Estate Ass'n v. worth v. Murray, 29 App. Div. at Cudlipp, 80 App. Div. at pp. 532, P- 196; cf. Paget v. Melcher, 156 N. 536; Dougherty v. Thompson, 167 Y. 399; Radley v. Kubn, 97 id. 26, N. Y. at p. 487. 36; Schwarz v. Rehfuss, 129 App. 22 Barber v. Brundage, 50 App. Div. 630; Wright v. Wright, 118 N. Div. 123, 126; Byrnes v. Stilwell, Y. Supp. 994; Newton v. Hunt, 134 103 N. Y. 4S3, 4S9; Lyons v. App. Div. 3125, 336. Ostrander, 167 id. 135,; Patchen v. 23 § 42, Real Prop. Law. Patchen, 121 id. at p. 434; Wads- 24 § ^q^ Real Prop, Law. §21 Contingent Remainders 149 present right of property.-" But as the Revised Statutes of New York confers on contingent remaindermen in esse a jus disponendi or a power of disposition,^^ it is apparent that a comtingent remain- dermian in esse has now a present right of property, although one always subject to a condition, or to the infirmity, expressed in the original limitation.-^ Thus it is conclusive that unless persons not in esse are necessarily involved in the legal title by the terms of the original limitation, no contingent remainder under the present statute necessarily tends to a perpetuity.^* If vested life estates are followed by contingent remainders in fee to persons not in esse, the limitation of such remainders must make them susceptible of vesting within ithe rule against a perpe- tuity,^^ or the limitation of the remainders is void in th'e creation.^" If contingent remainders follow three or more vested life estates such remainders are void, at least, if not alienaible within the law- ful period, by persons in esse, without recourse to courts for leave to so alienate.^^ But the first two life estates remain valid and take effect,^^ although the remainders, being contingent upon, lives not in being, are not accelerated by the premature statutO'ry destruc- tion of the third and other subsequent life estates. The statute does not accelerate such contingent remainders to persons not in esse, but vested remainders only. Nor does the statute validate such unlawful remainders because of the statutory abbreviation of the particular estate.'^ They perish of their own infirmity. But 25Goodeve, Law of R. P., (4th 543; Tiers v. Tiers, 98 id. 568; ed.), p. 2411. Henderson v. Henderson, 113 id. i; 26 § S9, Real Prop. Law. Kiah v. Grenier, i T. & C. 388, affd., 27 Maurice v. Graham, 8 Paige, 56 N. Y. 220. 484 ; Kelso v. Lorillard, 85 N. Y. ^i Gott v. Cook, 7 Paige, 521, 543 ; 177, 184; Lingsiweiler v. Hart, 10 Araory v. Lord, g N. Y. 403, 415; App. Div. 156; Kiah v. Grenier, i Leonard v. Burr, 18 id. at p. 107; T. & C. 388, s6 N. Y. 220; Schettler v. Smith, 41 id. 328; Knox Dougherty v. Thompson, 161 N. Y. v. Jones, 47 id. at foot of p. 397; 472, 487; Denison v. Denison, 96 Purdy v. Hayt, 92 id. at p. 457; App. Div. 418, 4122; Schwartz v. Hobson v. Hale, 95 id. at p. 612; Rehfuss, 129 id. 630. Dana v. Murray, 122 id. at p. 616. 28 § 42, Real Prop. Law, but see ^2 § ^3^ Real Prop. Law ; Purdy an intimation to the contrary in v. Hayt, 92 N. Y. at p. 451. Matter of Wilcox, 194 N. Y. 288. 23 Purdy v. Hayt, 93 N. Y. at p. 29 § 42, Real Prop. Law. 4511 ; Dana v. Murray, 122 id. at p. 20 Harrison v. Harrison, ' 36 N. Y. 618. 150 The Decedent Estate Law § 21 if contingent remainders are of a character to be immediately alienable, their remoteness, as Lord St. Leonards said of remote common law remainders, would seem to have no relation to a per- petuity.^* Whether remainders which are contingent only by rea- son of some collateral event (and not contingent because to persons not in esse) are accelerative under the present law does not appear lo be fully decided. In a recent case. Matter of Wilcox, it is in- timated that they are void because too remote.'" But such an opinion was not necessary to the conclusion in that case, and until the point is actually decided the argument or dictum is perhaps open to further consideration.^* In the case of Woodruff v. Cook there was a remainder after three life estates to children in esse of testator but contingent upon a collateral event, and yet the Temainder in fee was accelerated.^' It will be observed that when contingent remainders follow vested life estates (not to trustees, for they are now subject to a statutory restraint) the vice of a perpetuity can be affirmed only of the con- tingency in the remainder. The life estates ane immediately alienr able, but the estate is not alienable for a fee simple, because of the contingent remainders. Where such remainders are to persons not in esse they necessarily suspend the power of alienation, and it is a rule of law that tilie entire limitation of the fee must comply with the existing rule against a perpetuity. But in a devise of legal estates the obnoxious limitations only need perish. The old rule, in regard to legal estates devised in a will, was that estates which could by any possibility be saved and separated from limitations bad at law would be saved.'* There would seem to be nothing in the present statute which, in itself, prevents the accel- eration of those contingent remainders which are tO' pKCrsons in esse, and only contingent by reason of some collateral 'event; provided suoh remainders are, by the nature of the limitation, susceptible of taking effect in possession or interest after the two^ first life estates. If any resulting estate must necessarily intervene after the first two 34 Cole V. Sewell, 4 Dr. & W. i; 3' 61 N. Y. 638. 3 Ho. Ld. Cas. 186; 2 Preston, Ab- ssKane v. Gott, 24 Wend, at p. stracts of Title, 114. 665; Goodright v. Cornish, I Salk. 35 194 N. Y. 288. 226 ; cf. 2 Preston, Abstracts of Title, 3« See Fowler's Pers. Prop. (2d 115. ), L. R. 43 SBFeame, Cotiting. Rem. 440, 441, Ch. D. 246; In re Ashforth, L. R. 442, 443. (1905) I Ch. 525. 96 Here there was a conclusive ^^ See Jackson, ex dem. NfcoU v. legal presumption of inalienability. BrowH, 13 Wend, at p. 4^. 97 In re Hargreaves (1889), L. R. § 21 Doctrine of Remoteness. 165 persons in esse will be allowed to perish because too remote in vesting. It will be remembered that after the Revised Statutes in Cadell v. Palmer in 1833 Lord St. Leonards (thai Sir E. Sug- den), a worthy compeer of the learned Fearne, said: "The old law raised no objection to estates granted in perpetuity, provided there was a power to bar them or destroy them so as to render tbem alienable." ^ In 1883, in the House of Lords, Lord Black- burn again struck the old key, when he tersely said in substance in Witham v. Vane that a power to alienate is inconsistent with a perpetuity. This intimation is only important as an indication of the probable judgment of the highest court in England when the real question is presented to that tribunal for a final solution. If the older cases on perpetuity, arising on executory devises and shifting uses, are examined in detail in connection with their state- ments about invalidity for remoteness of vesting, it will probably be found that the limitations are in essence to persons not in being, or otherwise inalienable, and that inalienability is postulated of such limitations. It is mainly the text writers of the academic sort, we venture to think, who insist on invalidity for remoteness alone in cases where there is no suspense of the power of alienation. \'\^hen the discussion comes 'before the judges in concrete cases the situa- tion is altered. We have already cited the utterance of Lord Blackburn in Witham V. Vane in the year 1883. In the Birmingham Canal Co. Case^ Ery, J., said in substance, " that whenever a right or interest is presently vested in A and his heirs, although that right may not arise until the happening of some contingency which may not take effect within the period defined by the Rule against Perpetuities, such right or interest is not obnoxious tO' that Rule and for this reason: The Rule is aimed at prevaiting tiie suspension of the power of dealing with the property * * *. But when there is a present right of that sort, although its exercise may 'be dependent upon a future contingency, and the right is vested in an ascer- tained person or persons, that person or persons concurring with. the person who is subject to the right, can make a perfectly good tide to the property * * * j think that Gilbertson y. Richards is a distinct authority in favour of that conclusion." il CI. & Fin. 372. 2 II ch. D. 421, 48 L. J. Cb. 552. i66 The Decedent Estate Law. . § 21 Were the Canal Co. case not a late English case we should think that we were listening to the voice not of Fry, J., but of the New York revisers of 1830. There are other English cases to the like effect, notably Sir R. P. Arden in Routledge v. Doril;' Cran- worth, C, in Gooch v. Gooch,* and Avern v. Lloyd,^ where Romilly, M. R., held that a limitation to a class O'f unborn issiue for life and to the representatives of the survivor, being one in which all the interests were alienable within the legal period, the rule did not apply. So in Keppell v. Bailey" Lord Brougham said in substance, that a certain remote covenant in regard to the use of land was not within the Rule against Perpetuities, because the land was suscep- tible of immediate alienation. There are other late English cases to the same import subsequent to the Revised Statutes of New York. Well may a learned writer on perpetuities, Mr. Marsden, admit that these cases can not be reconciled with the very modern English interpretation of the rule against perpetuities.'^ In view of these late English cases and the very strange ones to the contrary in England, it seems a late time of day for the intimation in this State^ that the revisers of the Revised Statutes intended a rule, the precise contrary of the statute making a suspension of the power of alienation the sole test of a perpetuity.^ The dictum in Matter of Wilcox is not therefore en- titled to he regarded as authoritative. Having now examined the validity of contingent remainders in fee from various points of view, we may conclude that, for the reasons stated, devises of legal estates by way of shifting con- tingent remainders are now valid whenever similar limitaitions by way of shifting uses and devises were valid at common law, pro- vided only that such remainders or legal estates now vest within the aictual .minority of the first contingent remainderman. Thus such a limitation as the following is valid: life estates to A and B (persons in esse) for their successive lives in succession, remainder S2 Ves. 256, 266. s Matter of Wilcox, 194 N. Y. at 43 D. M. & G. 366, 384; 22 L. J. p. 298. Ch. 1089. 9 I R. S. 723, § 14, now § 42, Real 5 L. R. s Eq. 383, 37 L. J. Ch. 489. Prop. Law. 62 M. & K. S17. ' The Rule against Perpetuities, ^ 62. § 21 Cross Remainders. 167 ta their eldest child (not in esse), and if such child die under age remainder to tlie second child (not in esse), and if it then be dead remainder to the next surviving child in order of seniority who shall be living when such eldest child decease, and if there be none then surviving, remainder to C, a person in esse. That the revisers of the Revised Statutes never contemplated a perpetuity when" there was no suspense of the power of alienation, or that limitations of estates should thereafter be avoided for re- moteness whai tliere was no suspension of such power (although the contrary is lately intimated in Matter of Wilcox)^" is, we think, shown conclusively by their note to section 26 of the article on es- tates (i R. S. 724). Else 'why did they say: " If a remainder does not restrain the alienation oi the estate beyond the period allowed by law * * * of what consequence is it, or can it be, whether the contingency on which it is limited is near or remote? probable or improbable." ^^ Here, it will be observed, the revisers distinctly reject mere remoteness as a ground of objection to any limitation of a future estate. Can anything be more conclusive or authorita- tive of their intention? Cross-Remainders. We have pointed out at a former page that there was a difference before the Revised Statutes between cross- remainders and oross-executoiry limitations.^'' The non-observance of this distinction since the Revised Statutes tends to make the citation of old cases somewhat confusing to the general reader ; common-law cases bearing on cross-remainders having little applica- tion to cross-executory limitations, and e converso. At common law the subject of cross-remainders is intimately connected with tenancy in coanmon.''^ Croiss-remainders in practice, however, generally followed particular estates tail, either in sep- arate parcels of land or individual shares of the same parcels. Cross-remainders could not be raised by implication in a deed, but might be so raised in a will.^* When Blackstone wrote his great "194 N. Y. 288. "Challis, R. P. 299; Crabbe, R. P. 11 See Fowler's Real Prop. Law §§ 2339, 2340, Greenleaf's Cruise, <3d ed.), p. 1281. IV, 298, 299; 2 Preston, Abstracts ^^ Supra, p. 159. of Title, 78; i Preston, Estates, 95. 1^2 Preston, Abstracts Title, 78; Chains, R. P. 299. i68 The Decedent Estate Law. § 2-1 Commentaries on the Laws of England, cross-remainders, he stated, were not implied between more than two devisees.^^ But from Mr. Butler's note to Coke on Littleton this doctrine, founded by Bliackstone on Cro. Jac. 655, would seem to have been exploded, and cross-remainders between more than two devisees would be implied, but it required a stronger implication than whien the re- mainders were betwe-en two persons only.^° Cross-Remainders at Common Law. When lands are given in undivided shares to two or more for particular estates, so that upon the determination of the particular estates in any of those shares they remain over to the other grantees, and the reversioner or remainderman is not let in till the determination of all the par- ticular estates, the grantees take their original shares as tenants in common, and the remainders limited among them on the failure Oif the particular estates are known by the appellation of "cross- remainders." ^^ A very accurate and eminent conveyancing counsel in the early part of the last ■century, Mr. Preston, has given the best account of the operation of cross-remainders under the old laiw, and alH the more modern commentaries on this subject are mainly derived from his writings or from the sources we have already cited imme- diately above.^^ The old learning in reference to cross-remainiders was not difScult of apprehension when the cross-remainders were ■between two persons ; but when the particular estates were many and the remainders on them crossed between many persons, the mode by which they could be effectively alienated required the high- est degree of professional skill. The revisers of the Revised Stat- utes -were familiar with such difficulties, and they, 'therefore, made cross-remainders thereafter permissible only to a ■very limited extent. Cross-remainders not limited on estates tail, but after an indefi- nite failure of issue could, before the Revised Statutes, only arise as uses or devises, and such cross-remainders were then circum- 15 2 Comm. 381. This note is generally paraphrased 16 Coke on Litt. 159b, and so in books on Real Property. See state; 2 Jarman on Wills, 460, 461, Goodeve, R. P. 265. and Ram on Wills, 61. 1* i Preston on Estates, 94. "Butler's note, Co. on Litt. 19S&. § 21 Cross Remainders. 169 scribed by the contemporary rule against perpetuities.^' It was for this reason that in practice, under the old law, cross-remainders gen- erally followed particular estates tail.-" An example of a limitation of oross-remainders by deed under the old law is : " Estates tail . to the use of all the daughters (say A, B, C and D) in equal shares I as tenants in common in tail, and if and so often as there shall be ' a failure of issue of any such daughters then as Awell as to her orig- inal share as also to any share whic'h shall have accrued to her or her issue by virtue of this present limitatipn, to the use of the others of such daughters in tail in equal shares as tenants in com- mon. And if there shall be a failure of issue of all such daughters but one, then as to the entirety of the premises to the use of such one daughter in tail." Here (as the reader will observe) if there are four daughters and several die without issue, the shares of those dying go to augment the shares of the others. In limiting cross-^remainders in tail care had to be taken to give the accruing shares over as well as the original shares. Otherwise the accruing shares would go to the next remainderman-^ (or in a devise pass as undevised if there were no remainder over, as there always is in a strict settlement) }'^ The reader will also remember that at common law, cross-remain- ders after estates tail were never too remote, as remoteness was out of the question when the limitations took effect as legal limita- tions, and not as uses or executory devises.^^ As apiplied to remain- ders after estates tail Lord St. Leonard's remark has never been dou'bted in England, even during the late academic effort to sub- ject legal rpmainders to the modern rule against perpetuities; an effort with which the common law of this State has no concern, as it is more modern than our existing common law of real property. 19 Patterson v. Ellis, 11 Wend. 21 gee Elphinstone's Introduction 259; Vedder v. Evertson, 3 Paige at to Conveyancing (6th ed.), p. 403. pp. 291, 292; Van Vechten v. Pear- 22 xbe author makes this last ob- son, 5 id. 512; Ferris v. Gibson, servation as tentative only, as it con- 4 Edw. 707; Hill V. Hill, 4 Barb. cerns English law. 419. 23 Lord St. Leonards in Cole v. 2" See the authorities cited in Sewell, 2 Con. & Laws, 344 ; 4 Dr. Fowler's Real Prop. Law (3d ed.), & W. i; also cited in 2 Washburn 224, on Real Prop., 235 (ist ed.). 170 The Decedent Estate Law. § 21 But at common law cross-remainders are not necessarily confined to remainders limited on undivided parts of tlie same parcel of land. If a devise be of one parcel of land to A in tail, and of another parcel of land to B in tail, and if either die without issue the other to take, and if both die without issue then to C in fee, the remainders to A and B are " cross-remainders." ^* Chancellor Kent in his Commentaries necessarily changed Black- stone's language so as to make the illustration apply to devises of cross-remainders following separate estates to A and B in fee; es- tates tail having disappeared in America.^' But as before remarked, such remainders on estates in fee are not common-law remainders but cross-executory limitations, as is shown by Chancellor Kent's use of the word " devise." In making this change in the illustra- tion by Blackstone, Chancellor Kent showed his usual discrimination and profound knowledge of changed conditions, for the abolition of estates tail in this country had made it necessary that most cross- limitations should take effect as executory devises, or in convey- ances to uses, and no longer as common-law remainders.^® Effect of Abolishing Entails. Since cross-remainders at com- mon law limited on particular estates tail must have falikn in this State in 1782, when the first statute converting estates tail into fees simple was enacted, we need not longer dwell on cross-remainders after estates tail.-^ As at common law there could not be a remain- der on a fee simple,^^ it is also apparent that the only old oases now relevant to our present statutory conditions must be mainly those which treat of cross-executory uses or limitations, and that the old cases bearing on cross-remainders after estates tail have no longer any appHcation in this State.^* The old cases on cross- remainders after Hfe estates remain, of course, pertinent to present conditions. But there are few of them to consider, as in practice cross-remainders usually followed particular estates tail.^" 2<2 Black. Comm. 381; Challis, ^^ Jackson v. Robins, 16 JohnB. 299'; Lett V. Wykoff, 3 N. Y. 35.5. 537, 583. 25 4 Kent Comm. 201. 29 See Leslie v. Marshall, 31 Barb. 26 See Leslie v. Marshall, 31 Barb. 560, and Wolfe v. Van Nostrattd, 2 560, as to distinction between re- N. Y. 436, as to the distinction be- mainders and executory devises. tween remainders and executory de- 2' See Fowler's Real Prop. Law vises. (3d ed.), under § 42, p. 305 seq. so Lott v. Wykoff, 2 N. Y. 355. § 21 Cross Remainders. 171 In practice in this State since the Revised Statutes cross-limi'ta- tions can now arise in two ways only: by cross-remainders after life estates to tenants in common/'- or by cross-executory limita- tions of estates in fee simple to persons in esse, and, on their death without issue, cross-limitations to those of the grantor's stock. These dissimilar limitations in reality come at present to much the same thing, as in the last case the fee, ex necessitate rei, is in reality cut down to a life estate. The statute making a failure of issue now implies a failure of issue at the death of the parent,^^ and no longer an indefinite failure of issue which could formerly in this State be supported only as an estate tail.^^ We .have already intimated, that devises of remainders over after a faikire of issue are not common-law remainders, but executory limitaitions, and they are to be resolved on principles, found in the old cases on executory limitations, rather than in those bearing on remain- ders. Yet, as it is still the law of this State that no devise which can be construed as a former remainder shall be construed as a former executory devise, and as cross-remainders on life estates are still possible, we will first consider devises of common-law cross-remainders.^* The only common-law cross-remainders which are now permis- sible in this State since the Revised Statutes must follow life estates in separate parcels or in the same parcel to tenants in common. For example, if a testator devises life estates to his four children, A, B, C and D, in one parcel of land, with remainders to testator's own right heirs or heirs of his body, his children will take as tenants in common for their several lives, and cross-remainders will be implied at the death of the testator's first child.^° Had the testator used the words " cross-remainders to my own right heirs or to the heirs of my body " no implication would have been, how- ever, necessary, as the most informal expression, if clear, suffices 21 Denison v. Denison, 185 N. Y. stein, 5,1 App. Div. 18, 23. The old at p. 447. law on this point is stated in Lott 32 § 48, Real Prop. Law. v. Wykoff, 2 N. Y. 355, 359. 33 See Fowler's Real Prop. Law 35 Purdy v. Hayt, 92 N. Y. at p. (3d. ed.), p. 335. 4S4. See Kent v. Kent, 99 App. 3*Man(ce v. Manice, 43 N. Y. at Div. 112. p. 368; Miller v. Van Schwarzen- 1/2 The Decedent Estate Law. § 21 to carry cross-remainders at common law,^" and such is no doubt still the law.^^ It will be remembered at this point that any words which formerly raised an estate tail now carry a fee simple to the first taker.^" Cross-remainders are in reality a simple species of family set- tlement, as they are designed to keep the property for a time in a particular line of devolution which is generally that of the set- tlor.*' If a testator were to give estates to his children, to hold as joint tenants, and not as tenants in common, with remainders to grandchildren as purchasers, the result of the limitation would seem to be very like that flowing from a limitation of cross-remain- ders after estates to tenants in common for life. In either event, if testator had only two children, there would be no illegality under the existing statute.*" The object of cross-remainders at com- mon, law was to so limit a family estate that upon the failure of each, stock taking shares its share would be divided equally among oither stocks, and that all the original and accrued shares would finally devolve upon the last subsisting stock.*^ Such a scheme, if not wholly impaired by the provisions oif the Revised Statutes, was very much abbreviated. Cross-remainders over were tolerated by the Revised Statutes only within very narrow limits; the num- ber of vested particular life estates which could support cross-re- mainders was reduced to two. In short, the entire common-law scheme of settlements by way of particular estates and cross-re- mainders was destroyed by the Revised Statutes. 'And not only this, hut the scheines of settlements by way of executory limitations, which had grown up after the Statutes of Uses and Wills, were entirely remodeled by the Revised Statutes. Cross-remainders between two persons create no difficulty either at common law or under the present practice ; thus, by the common law, one undivided moiety in tail with remainder to B in tail, and 36 See Lord Kenyon/s opinion cited and not as a legal proposition. But 4 Cruise D. 301. Mr. Preston also noticed the resem- 37 See Purdy v. Hayt, 93 N. Y. at blance of cross-remainders to species p. 454- of entails. ** § 32, Real Prop. Law ; Matter " Purdy v. Hayt, 92 N. Y. at p. of Moore, 152 N. Y. 602. 454. 39 This observation by the author « See Challis, Real Prop., 300. is offered only by way of analogy, § 21 Cross Remainders. 173 the other undivided moiety to B in tail with remainder to A in tail ; *' or, under our present practice, limitation of an estate to Jane and Catherine as tenants for life, and remainder of the share of the one first dying to the other,*^ are both limitations entirely free from difficulties either legal or practical; the former by the common law, and the latter under present statutes. It is only when a similar limitation is to more than two first takers that the result is more complex and questionable. For example, consider a limi- tation as follows : Estate " for life to A, B, C and D, and, if any one of them die, remainder to the survivor, so tliat the final sur- vivor 'will have the whole." Here all the life tenants are seised as tenants in common of an undivided one-fourth. But each has three cross-remainders in the various other undivided fourths. For example, if A first dies, B, C and D have each life estates in their origina;! one undivided fourths, and in addition a vested remainf- der in one undivided fourth of the entire fee simple. If B then dies, C and D are seised of an undivided one-half of the fee sim- ple; thus each of them has his original undivided one-fourth for life, and an undivided one-half in fee simple. When C next dies, D, the final survivor, takes the entire estate. But in practice in this State such cross-remainders, if limited on more than two suc- cessive life estates will, on the death of the two firsit dying, be accelerated,** unless the remainders are contingent.*^ It has been before intimated that the decision, excepting oontingent remainders from acceleration, probably meant when they are contingent be- cause to persons not in esse. Remainders to persons not in esse can not be accelerated in the nature of things.*" But when the remainder is contingent because of survivorship of a class at a future date, it is at least susceptible of acceleration cy pres. Under the decision of the leading case on cross-remainders in this State,*^ cross-remainders may be valid as to some shares, and invalid as to others. The questions, how far and why such cross- remainders are invalid, are very important questions, and as they ^2 Challis, Real Prop., 299, 300. *^ Supra, p. 140. ^sPurdy v. Hayt, 92 N. Y. at p. *^ Supra, p. 151. 454. *' Purdy V. Hayt, 92 N. Y. 446. ^■•Lorillard v. Coster, 5 Paige at p. 229. 174 The Decedent Estate Law. § 21 are by no means settled they need not be discussed at length. It will suffice to point out here, that by the existing laiw of remainders no cross-remainder is valid as to any share, if it is limited to take effect in possession after more than two particular life estates. Therefore, cross-remainders between .more than three persons are now obviousily impossible. This is not because of the present rule against a perpetuity, but because of the existing law of remainders ; althougih remainders, if contingent, because to persons not in esse, are subject to the present rule against perpetuities. Cross-remainders between more than three persons are not only now impracticable because prohibited by the law Oif remainders, but because they can not be barred. Under the old law tenants in tail could bar the cross-remainders, limited on his particular estate, by a common recovery, and all the tenanAs in tail in possession unitedly could probably bar the cross-remainders by a fine.*^ But under the present law, no tenant for life can bar any of the cross- remainders by any act of his own.*^ Cross-remainders, if contin- gent, are, therefore, certainly subject to the existing rule against a perpetuity,^" even if they are not adjudged void for remoteness, as it is lately intimated in Matter of Wilcox may be the case.^^ The difficulty in practice, then, with an ultimate limitation to granddhiildren, after life estates to their parents, is, that as there can no longer be cross-remainders after two precedent life estates fall in, the remainders may be let in too soon.'" Besides, the tes- tator generally wishes to give fees to his children, defeasible on their death without issue, and not mere life estates. But, as stated repeatedly before, cross-remainders of fees on fees defeasible are really cross-executory limitations, and not cross-remaindcTS at all. To call suidh Hmitations cross-remainders and endeavor to apply old cases touching cross-remainders is very confusing to principle. Such remainders are now called " cross " simply in deference tO' the statute defining remainders.^^ The general method employed in *^ This was a very nice question at 5i ip^ n. y. 288. common law, depending on the na- ^ § 43, Real Prop. Law ; Purdy v. ture of the particular cross-re- Playt, 92 N. Y. at pp. 451, 455. mainder. 63 § 38^ Real Prop. Law. « § s8, Real Prop. Law. =0 Purdy V. Hayt, 92 N. Y. at p. 457. § 21 Remainder on Attaining Majority. 175 this State 'by conveyancers since the Revised Statutes, When cross- limitations are desired by testators, is to limit fees defeasible in separate parcels to children, and if any child die without issue cross-executory limitations over to survivors or their issue per stirpes and not per capita. Here the limitations ought to be held valid, if they comply with the rule against perpetuities.^* Their vailidity has no real relation to the section O'f the statute regulating remainders on life estates. In a case of cross-limitations, based on defeasible fees simple, it is important to remember that formerly it was thought they would not be implied in devises,'"''' but must be express, and this was probably the old rule.^^ But in modern law and at the present day the m'axim's, " that estates will not be cut down by implication if another construction is possible," '^ and " that cross-remainders will not be implied in a devise," seem to give way tO' the rule " that the intention^ of testators must be sought and efifectuated if pos- sible." ^* At least, the trend of modern cases is in that direction, while the modern ruling, that since the Revised Statutes lapsed devises no longer fall to the heir by a caducary succession, but pass under the residuary clause,^" is to some extent inconsistent with the old rules regarding the construction by implication of devises of cross-remainders.*" Remainder to One on Attaining Twenty-one Years of Age. In Roome v. Phillips, where a devise of a life estate was foLlowed by a " remainder " to the heir-at-law, when he became twenty-one years of age, the questions are discussed on the basis of the new law of remainders, and not on the law relating to executory de- vises.*^ But the real point adjudicated is that the remainder in 5* § 43, Real Prop. Law; Fowler Div. at p. 342; Vanderzee v. Slinger- V. Depau, 26 Barb. 224; Purdy v. land, 103 N. Y. 47, 56; Matter of Hayt, 92 N. Y. at top of page 457. Cramer, I'To N. Y. 371, 275. 56 Fowler v. Depau, 26 Barb, at p. 5' Cruikshank v. Home for the 235. Friendless, 113 N. Y. 337; Matter of 56 2 Jarman's Power on Devises, Allen, 151 id. 243; Moffett v. Elmen- chap. 32. dorf, 152 id. 475. 5' Washburn v. Cope, 144 N. Y. 6° 2 Jarman on Wills, chap. XLIII. 287 ; Byrnes v. Stilwell, 103 N. Y. *' See next paragraph on " Exec- 453, 4160. utory limitations." 5« See Matter of Miller, 11 App. 176 The Decedent Estate Law. § 21 Roome v. Phillips is vested, but subject to be divestedi on the remainderman dying under twenty-one years of age.*' Executory Limitations on Precedent Estates and " Failure of Issue " of First Taker, Limitations of estate to tenants in com- mon with remainders over on failure of issiue, it will be remem- bered, are only statutory " remainders " and not oommion-laiw remainders."^ Nothing was a remainder at common law which operated to abridge the regular determination of a precedent estate created at the same time, and no remainder at common law could subsist on a fee simple."* That the revisers of the Revised Statutes to some extent meant to perpetuate this distinction between, re- mainders and conditional limitations is apparent from their statu- tory definition of conditional limitations."'' Their definition of a " remainder " was apparently only for the purposes of the convey- ancers, and simply to indicate what would pass in a conveyance under the term of " remaiinder." This statutory definition of " remainder " has a slender relation to any active reform contem- plated by the Revised Statutes. The reforms of the Revised Stat- utes in the article on Estates consist mainly in attempts to make conveyances good at law which were formerly good only as " ex- ecutory devises " or in conveyances to uses, and to remodiel the old rule against perpetuities, so as to abbreviate the period, and to extend the rule itself to all types of conveyance, whether such as then denominated legal or equitable. With this brief reminder of the reforms contemplated by the Revised Statutes, and only perpetuated in the present artide on Estates,"" let us turn to the now permissible devises of fees de- feasible on failure of issue with remainders over in fee, A fee may now be mounted on a fee by a deed between the real parties to the conveyanoe, as well as by a will or a conveyanice to uses,"^ always provided such limitations comply witli the revised rule directed against perpetuities."* «* Roome v. Phillips, 24 N. Y. 463. «s § 53^ Real Prop. Law. «' § 38, Real Prop. Law. 86 Art. 3, chap. 50, Consol. Laws. 64 1 Preston Estates, 91 ; supra, «' § so. Real Prop. Law. pp. 152, 170. 6S § 42, Real Prop. Law. § 21 Dying Without Issue. 177 " Dying Without Issue." A devise of a fee over to another on the first taker " dying without issue " was at common, law, when- ever possible, construed as a dying of the first-named devisee with- out issue in the lifetime of the testator; and if such devisee sur- vived the testator he took an absolute fee.*" Otherwise an estate tail would have to be raised by implication'" in order to save the devise over; for an executory devise after an indefinite failure of issue was void at the common law as a perpetuity.'^ The Revised Statutes provided that a conveyance, containing a limitation over on " a death without issue " simpliciter, should be construed as meaning without issue at the death of the person named as an- cestor.'^ This was intended to negative the old rule, that a death without issue meant an indefinite failure of issue or an estate tail. Tlie courts now effectuate any evident intention of the testator, that on the first taker's death without issue a fee defeasible sihalil go over to some one else, and they do not give the first taker a fee simple absolute merely because be survives testator.'^ This is notw a rule of property in this State. Where a devise is " to a woman arad if she die without issue, then over, etc.," there is ordinarily no presumption at any age of her life that sihe may die without issue, so raa to carry an inde- feasible title to those in remainder or next in suocession to the estate.'* And this was the common-law rule, for a gift tO' a childless woman of a hundred years of age and upwards and the heirs of her body passed an estate tail, and not a mert estate tail «9 Matter of N. Y., L. & W. R. Rathbone v. Dyckman, 3 Paige, 9, Co., 105 N. Y. 89, 92; Beck v. Ennis, 30; Leake on Prop, in Land, 139, 54 Hun, 126; Matter of Peters, 69 235; i Jarman's Powell on Devises, App. Div. 465.; and see Smith's 188, note 2. Executory Interests, §§ 537, 656 and 'i Fearne on Conting. Rem. 444; cases cited. Lewis in his work oru Challis, 146. Perpetuities, chaps. XIV, XV, goes '2 1 R. S. 724, § 22, now § 418, over this ground but rarely with Real Prop. Law. great accuracy in his deductions '3 Vanderzee v. Slingerland, 103 from cases. Lewis, like Cruise, is N. Y. 47, 56; Matter of Cramer, 170 very deficient in stating legal propo- id. 271, 275.; Matter of Mahen, 32 sitions : See Sugden in Cadell v. St. Rep. 790. Cf. 26 Law Quar. Rev. Palmer, i Tudor L. C. R. P. at p. 239. 451. '* Downey v. Seib, 102 App. Div. '"Pells V. Brown, Cro. Jac. 450; 317; affd., 185 N. Y. 407. 12 178 The Decedent Estate Law. § 21 after the possibility of issue extinct.''^ But in the making of a title by those next in succession, it seems the court will take notice of her age, and have regard to the possibility of issue extinct/" " Dying Without Heirs." In a similar limitation to a person in being and, " if he die without heirs," remainder over to another, the word " heirs " is, since the Revised Statutes, taken to mean " heirs of his body " and not heirs general or colateral.'^ This decision may be taken as one of the most important lately rendered in the construction of the statutory law of real property. Fees Mounted on Fees. Since " fees may now by statute be mounted on fees " ^* by any type of conveyance, lawyers and con- veyancers of this State are very free in taking advantage of the statutory extension of the old rule regarding executory limitations, and we find, consequently, in any sort of family arrangement, whether it arise by deed or by will, that lawyers consitantly avail themselves of the statutory permission. Limitations which are in effect to children of testator, either as tenants in common of one parcel or in severalty of various parcels, and if any of them die with- out issue, then " remainder " over to the surviving children of tes- tator or their issue per stirpes, are very common limitations in this State. Before discussing the several rules which govern such limi- tations, as those last mentioned, let us remind the reader of the abolition by the Revised Statutes of the rule in Shelley's Case, whereby in a limitation to an ancestor of any estate of freehold, foMowed by a limitation to his heirs, the heirs took no estate at all, but the limitation to them coalesced with that to the ancestor. This famous rule of the common law, the Revised Statutes abro- gated for the future, with the consequence that in any such limita- '62 Preston, Estates, 395. "Kiah v. Grenier, 56 N. Y. 220, '^Bacot V. Fessenden, 130 Aipp. 225; Matter of Moore, 152 id. 602 j Div. 819, 823; IIS N. Y. Supp. 6g8, Snidery. Snider, 160 id. 151; MaUer 702; and see Adney v. Greatrex, 38 of Cramer, 170 id. 271, 276. L. J. Ch. where it was assumed that 's § j^^ Real Prop. Law. a woman of 60 was past childbear- ing. § 21 Fees Mounted on Fees. 179 tion the heirs now take as purchasers.^* This was a very wise change, as the rule was never very popular in this State.*" But far the most important reform in the common law regulating limitation of estates was that dispensing with the necessity of men- tioning " heirs " in a limitation of a fee simple.*^ Where estates are now given to children (and the presumption, always is that all the estate of grantor passes^^), and if they die without issue, remainder over, there is nothing repugnant to the first devise in fee in the limitation over. The statute distinctly permits a fee to be limited on a fee,*' and even where the first taker has a power of disposition, so as possibly to defeat the re- mainder entirely, the limitation over is now valid, as the old rule to the contrary is abrogated by the Revised Statutes.** In any limitation of a fee on a fee, the fee defeasible is often treated as a " base fee," or a fee upon or subject tO' a condition, and the consent of those contingently entitled by way of remainder is necessary to convey a perfect title to the estate.*^ It will be observed that the present use of the words " base fee," which strictly relates to a fee which springs from a fee tail, to char- acterize a fee simple made thus defeasible, is not strictly a tech- nical use of the term " base fee," but is intended to denote a fee which is not simple and abso'liute in regard to time.*" If the first taker of a fee defeasible has not an absolute power of disposition of the estate, it is obviously on the principle " cessante statu primi- tivo, cessat derivativus. ' The first taker can dispose of his own estate, and any attempt to circumscribe such a power would be void. But he can dispose of a " base fee " only, under the decisions. '5 Brown v. Lyon, 6 N. Y. 419 ; derzee v. Slingerland, 103 N. Y. 47 ; Moore v. Littel, 41 id. 66. Matter of Miller, 11 App. Div. 340; ^^ See Campbell v. Rawdon, 18 Matter of Moore, 152 N. Y. 602; N. Y. at p. 420. Williams v. Jones, 166 id. 522, S37- 81 1 R. S. 748, § I, now §§ 240, 84Leggett v. Firth, 132 N. Y. 7; 24s, R'eal Prop. Law; Saunders v. Tuthill v. Davis, 121 App. Div. 290; Hanes, 44 N. Y. at p. 364. Matter of N. Y., L. & W. R. Co.. *2 1 R. S. 748, § I, now § 245, Real 105 N. Y. 89. Prop. Law; Williams v. Petit, 138 «5 Matter of N. Y., L. & W. R. App. Div. 394. Co., 105 N. Y. 89, 96, 97. S3 § so. Real Prop. Law ; Mott v. ^^ gee authorities cited, Fowler's Ackerman, 92 N. Y. at p. 549; Real Prop. Law (3d ed.), 174. Avery v. Everett, no id. 317; Van- i8o The Decedent Estate Law. § 21 It is because of these peculiar and modern rules, relating to fees defeasible and the devolution of fees since the Revised Statutes, that family settlements or wills in this State are so peculiarly dependent on the construction of limitations of fees defeasible, or of fees ' over in case the first taker " die without issue." A fee may now be limited on a fee onl^ when the limitation over complies with the article on Estates in the Real Property Law, or to quote the statute: "A fee may be limited on a fee, upon a con- tingency which if it should occur must happen within the period prescribed in this article" (on Estates)." It was formerly gener- ally understood that this circumscription of th'e power to limit a fee 00 a fee referred only to the revised rule against a perpetuity, and not to the sections of the statute regulating the limitation of former common-law remainders. But a late opinion of the Court of Aj)peals somewhat disturbs this undersitanding of the profes- sion.^* It denies that the suspension of the power of alienation was intended to be the sole test of a perpetuity, and cites in support of the contention those restricting or regulating sections of the Re- vised Statutes which relate to the creation of future estates by limitations in the nature of former common-law remainders.'' By the old law, antecedent to the Revised Statutes, there were two classes of rules regulating the creation of future estates. If estates were created by legal limitations or, in other words, by those limi- tations which were recognized antecedently to the Statutes of Uses and Wills, they were regulated by a set of rules of very ancient origin, designed to prevent " a perpetuity which the common law abhorred." These rules answered all purposes before modern stat- utes changed the common law. If on the other hand a future estate was created by some assurance which was good under the Statutes of Uses or Wills only, then the so-called rule against perpetuities regulated the limitations . so as to prevent the undue suspense of the power of alienation. At the time the Revised Statutes took effect this distinction was familiar to all real property lawyers. It is very obvious from the scheme of the Revised Statutes that the 8' I R. S. 724, § 24, now § so, 89 1 R. S: 724, §§ 18-23, now §1 Real Prop. Law. 44-49. 88 Matter of Wilcox, 194 N. Y. § 21 Fees Mounted on Fees. i8i revisers had regard to this existing distinction. It would haive been, indeed, strange if they had not regard to it. They consequently regulated limitations in the nature of former common-law remain- ders .by a series of sections wihich modified the former law. Limi- tations in the nature of former executory limitations (not being remainders), they subjected to the rule against perpetuities which they revised by abbreviating the old period during which there might lawfully be a suspension of the power of alienation. This phase of the scheme of the Revised Statutes was recognized in the • case of Purdy v. Hayt, whei-e it was well said that one of the sec- tions regulating remainders liad no necessary connection with the rule against perpetuities.'" Had the other sections of the statute regarding remainders been under review no doubt this sensible ob- servation would have been extended to them, in so far as pertinent. We have seen that under the decisions, in the limitation of a fee on a fee to persons in being, the first taker takes a base fee defeasible on his death without issue. The second taker then oirdinarily takes a fee simple absolute by the terms of the limitation. But if a par- ticular limitation should provide that in case the second taker die without issue, then the estate should vest in the then eldest male heir of the testator, and if such eldest male heir die without issue under the age of twenty-one years, then to the next male heir of testator in order of seniority, would it violate the existing statute? We have alluded to this question before in these pages. The ulterior limitation would certainly vest, if at aM, within two lives in being and an actual minority, anid wouild be within the revised rule against a perpetuity. It is true that in Mott v. Ackerman the court states that in a limitation of a fee on a fee the contingency upon which the second fee vests, if at aM, must happen within two lives.'^ But there is nothing within the context of the opinion which decides that fees defeasible or shifting fees may not be limited so as to vest beyond two Kves, provided that they vest, if at all, within an actual minority in addition to the two lives in being.'^ That point was not before the court. Prior to the Revised Statutes any number of shifting fees could, by a skilful conveyancer, be well limited as " executory interests," 9» 92 N. Y. at p. 451. '2 § 42, Real Prop. Law. SI 92 M. Y. at p. 549. i82 The Decedent Estate Law. 21 provided that such shifting fees all vested within the old rule against perpetuities.®^ The reform of the Revised Statutes was to make any former limitations by way of shifting uses or executory devises valid at law anid in any form of conveyance without resort to the law of uses and devises, and to circumscribe the loiwful period for the suspension of the power of alienation from any number of lives and a term in gross of twenty-one years to two lives and an actual infancy in addition. The revisers so announced repeat- edly, and the courts of this State have since, in several Wiell-consid- ered cases of magnitude, placed this construction on the statute.' It would therefore seem that the question is not really open, and that since the Revised Statutes, as before it, any number of fees defeasible can be limited over, provided they finally vest within the contemporary rule directed against perpetuities.®* Remainders Favored by Construction. But in the construction of shifting limitations of fees on fees it should be recalled that if a limitation can possibly be construed as a remainder it will not be construed as an executory limitation^ The purport of this rule still holds good since the Revised Statutes, as it is still desirable that estates should be certain, rather than 'uncertain, and vested rather than contingent.®'' Conditional Limitation, In the old law it was sometimes 'doubt- ful, however, whether a settlement took effect as a remainder or under the Statute of Uses or the Statute of Wills. Digby in his notable " History of tlie Law of Real Property " refers to this point in a note in which he states, " that there would be no objec- 93 Tudor, L. C, R. P., note p. 464; 9* See Williams v. Jones, 166 N. Y. Leake on Prop, in Land, 33, 261, 319; at p. S38, as to " shifting uses" and I Prestoni, Estates, 492; 2 Preston on "executory devises" being now Conveyancing, 478; Fearne, Conting, "conditional limitations," and see Rem., 276, 373'; Smith, Ex. Interests, Rudd v. Cornell, 58 App. Div. at §§ 1417, 148, 149, i6s; Challis, Real pp. 216, 217, as to fees defeasible Prop., 147; Goodeve, Real Prop., under modern statutes. See also .287; Williams, Real Prop. (12th above pp. 152, 155, 161, 166. ed.), 289-320; Van Horne v. Camp- 95 ]y[anice v. Manice, 43 N. Y. at tell, 100 N. Y. 387, 391 ; Stokes v. p. 368; Miller v. Van Schwartzen- Hyde, 14 App. Div. 530, 535. stein, 51 App. Div. 18, 23. § 21 Shifting Limitations. 183 tion at common law to a grant to A until marriage with B and then to C. H«re the estate would be an estate determinable upon the specified event, and in any case would not be more than a life estate. Such a grant would therefore be a conditional limitation, and on the happening of the event the estate would terminate in accordance with the Hmitation, and this estate, being a particular estate, and H'Ot a fee simple, there is nothing to prevent the estate to C taking effect by way of remainder. See Fearne, p. 13, and Butler's mote, Ibid." 8« This quotation from Digby permits us to call attention at this point to the very subtle difference between some present contin- gent remainders and conditional limitations. It is allluded to by Chancellor Kent with disapproval, and he very properly states that a " strict conditional limitation requires no particular estate to support it." *' Mr. Challis has also noted the confused usage in re^ ^ard to the term conditional limitation, and declines to employ it in precise discussion.^^ The revisers of the Revised Statutes with their usual acumen thought it desirable to settle the definition by statute.'* If we might hazard an adverse comment on soch a re^ fined and justly distinguished writer as Mr. Fearne, we would ven- ture to assert that even in his great treatise 00 Remainders that profound lawyer abandons the terminology of the law of remain- ders at points in his treatise, and that he appears to be unconsciously influenced by the familiar practice under the Statutes of Uses anid Wills in his comments on the law of remainders.^ Mr. But- Jier seems at first to foUow Fearne,^ but at a later place to correct him on this point.'' But without regard to the accuracy of the very distinguished writers just mentioned, it should be pointed out that the term conditional limitation is only used in the Revised Statutes to designate limitations not good by the common law. Shifting or Cross-executory Limitations May be Implied in Devises. It was probably the old law that cross-executory limi- 86 Digby, Real Prop., chap. V, § 3, 1 Fearne, C. R. 13, and see Mr. note 2. Butler's note cited by Digby. ^"i 4 Kent. Comm. 248, note 8. 2 Nde h, Fearne, C. R. 13. 98 Chains, 199. 3 Fearne, C. R. (Ex. Dev., chap, i) 99 1 R. S. 72s ; § 27, now § 53, Real 383, note. Prop. Law. 184 The Decedent Estate Law. § 21 tations would not be implied in devises.* So accorditiig to Mr. Powedl, " If a gift is made to several persons in fee as tenants in common wiith a limitation over in case they all die under twenty- one, the share of one of the devisiees dying under this age will devolve tiiponi his representatives, unless and until the whole die under that age." ^ In other words, the law was unwilling to cut down a fee to a life estate by mere implication in a devise. But in order to effectuate the intention of testators modern cases do seem to raise cross-executory limitations by imiplication ; ® at least the construction accorded cross-devises in some cases sieems no longer consistent with the principle, that cross-executory limita- tions will not be implied in a devise. But that cross-executory Mmitations will not be imiplied if another construction is possible is perhaps to be inferred by the recent adoption of the old principle, that whenever a limitation can be supported as a remainder it will not be regarded as an executory devise.' If this doctrine still 'holds since the Revised Statutes, then, whenever the first limitation vests in possession tliose that follow will stiM cease to be executory and become mere vested remainders.® It would, therefore, seem that cross-executory limitations will never be implied if another con- struction be possible, and that the old policy, that estates will never be deemed in suspense when they may be regarded as absolute, is still a rule of construction. Devise of Legal Estates, with Powers to Tenants Thereof to Dispose of the Fee Simple, and Remainders Over. Where tes- tator devises life estates with power to life tenants to dispose of the wihode estate or corpus, and yet limits a remainder over in fee to definite persons, such remainders are oontinigent on the non- exercise of the power by the life tenant. Such remainders never- * Fowler v. Depau, 26 Barb, at p. ' Manice v. Manice, 43 N. Y. at p. 235. 368; Millar v. Van Schwartzenstein, 5 2 Jarrrtan's Powell on Devises, 51 App. Div. 18, 23. 625; and see 2 Jartnan on Wills, ^Lion, ex dem., etc. v. Burtis, 20 chap. 44. Johns. 483, 489; Wilkes v. Lion, 2 'See Matter of Miller, 11 App. Cowp. 333, 385. Cf. Vedder v. Div. at p. 342; Vaniderzee v. Slinger- Evertson, 3 Paige, 281, 291. land, 103 N. Y. 47, 56; Matter of Cramer, 170 N. Y. 271, 275. § 21 Trusts. 185 theless are probably not now to be classed as contingent remainders." Before the Revised Statutes an absolute power of disposition an- nexed to a life estate would not in all cases have given the tenant for life a fee simple ;" but the limitation over of a remainder after a fee simple would have been void as repugnant to the estate first limited, and whether regarded as a remainder or as an executory- devise.^^ Since the Revised Statutes such doubtful remainders over are supported,-"-^ and the former rules in regard to such contingent or repugnant limitations over are held to be abrogated by statute.^^ Few classes of limitations are now more common in practice than the limitation of remainders over in case the life tenant does not exercise a power of disposition given him, or does not consume or exhaiust the corpus of the estate.^* Devises on Trusts. The Revised Statutes revised the antece- dent law of trusts long established in New York, and to some ex- tent, under a plea of revising the old Statute of Uses, codified some part of' the former law of trusts. But the changes made by the revisers in the law relating to trusts related to form rather than to substance. In the important case of Manning v. Miannkig, shortly after the establishment of an independent State government, Chancellor Kent announced in substance that the English system of equity jurisprudence formed an important and essential branch of the common law adopted by the first Constitution of the State, and that precedent would be followed when decisive of a rule.^^ In other words, the judgment of the Chancellor would, not be arbi- trary, but regulated by precedent and the rational system adminis- tered in the old courts of equity of England and the Province and 9 See Fowler's Real Prop. Law Real Prop. Law, and see the numer- (3d ed.), 237, 238, and cases there ous authorities collated, Fowler's cited. Real Prop. Law (3d ed.), 365, 366. " See Fowler's Real Prop. Law is Leggett v. Firth, 133 N. Y. 7, (3d ed.), 625, 626; Van Horne v. ii ; Tuthill v. Davis, 121 App. Div. Campbell, 100 N. Y. 287, 295. 2Q0. u Jackson ex dem. etc. v. Robins, " See the cases cited, Fowler's 16 Johns. S37; Wright v. Miller, 8 Real Prop. Law (3d ed.), 365, 628, N. Y. 9, 25; Vani Horne v. Camp- 629; Harris v. Achilles, 129 App. bell, 100 id. 287, 294, 297. Div. 847. I2l R. S. 72s, §§ 32, 33, now § 57. "i Johns, Ch. 527, 531. i86 The Decedent Estate Law. § 21 State of New York. But equity jurisprudence was not then a closed canon or on an absolutely sure and settled foundation until the end of Lord Eldon's career, and it will be remembered that he was a contemporary of Chancellor Kent. In the State of New York, even up to 1830, equity jurispnudence was not as important as the odd common law administered in the common-law courts of the State. The portion of equity jurisdiction usually invoked had been that merely corrective or supplementary portion which related to accident, fraud, mistake, mortgages, or the 'like, and to the sim- pler sorts of constructive trusts. Especially had there then been in New York very little use made of those subtle equitable settlements of estates in trust. In England, on the other hand, such settlements existed in great numbers upon executed trusts. It was in view of these facts and the simpler conditions of the law of property in the State of New York, that the revisers had little hesitancy in 1830 in auibjecting the adopted English law of trusts to fundamental change. The revisers in the instance of the main permanent express trust, or that to receive and apply the rents and profits of real property, prohibited the beneficiaries from alienating their rights in the trust.^" Not only this, the trustees themselves were ■prohibited from ailieniating, and every sale, conveyance, or other act of the trustee in contraivention of the trust was declared absolutely void.^' It was the restriction on the tnis,tees' power of alienation' tiiat sub- jected trusts for nonalienation to the rule againsit perpetuity in this State" Only four express trusts were tolerated by the Revised Statutes,^* but aid other trusts thitherto valid in equity became operative as trusts of powers, called " powers in trust." ^" Trustees were pre- vented from aKenating the trust estate whenever the trust was ex- pressed in the instrument creating the estate.^^ The ben'eficiaries 16 1 R. S. 730, § 6a now § 103, "i R. S. 728, § 55, now § 96, Real Prop. Law. Real Prop. Law. "i R. S. 730, § 65, nxm § 105, 20 i r. 5. 729, §§ 58, 99, now § 99, Real Prop. Law. Real Prop. Law. 18 Everett v. Everett, 29 N. Y. at 21 j r s_ 730, § 65, now § 105, p. 90; Garvey v. McDevitt, 72 id. Real Prop. Law. at p. 562; Robert v. Corning, 89 id. at pp. 23s and 236. § 21 Trusts. 187 of trusts had no longer an '' estate " bat a mere right in re to en- force the trust.^^ Powers in trust were subjected to a:ll tlie rules relating to express trusts, except that one relating to the devolution of the legal title to lands held on express trusts.^^ Changes so radi- cal in the prior rules governing trusts and trust siettlements oi estates make the learning on tlie present statute quite as important to conveyancers as tlie old learning familiar tO' chancery practition- ers in the last century. With this, perhaps too concise, review of some of the leading changes introduced by the Revised Statutes, we shall prooeed to consider briefly what settlements of estates on trusts are mow valid by the laws of this State. Estates in lands may be devised to trustees either expressly for one of the four purposes expressed in the statute,^* or for any other purpose not contrary to public policy or good morals.^^ It is only necessary for us to consider here the third and fourth ex- press trust purposes, as they are the purposes which most usually concern wills and family settlements. We refer to " trusts to receive the rents and profits of real property and apply them to the use of any person, during the life of that person, or for any- shorter term," and " trusts to accumulate." The Revised Statutes declared that express trusts, except as otherwise provided, should vest the whole estate in the trustees in law and equity .^^ The Gen- eral Laws qualified this to the " legal estate." -^ The decisions on the quantity of a trustee's estate in the case of the four express trusts are not so well settled as we should expect after so great a lapse of time from the passage of the Revised Statutes ; although leases by trustees and the application of the rules relative to future estates limited after or in defeasance of estates to trustees much depend on the accurate solution of the 22 1 R. S. 729, § 60, now § 100, 24 § g6^ Real Prop. Law. Real Prop. Law. There was a very 26 Seldeni v. Vermilya, 3 N. Y. at stupid blunder in' re-enacting this p. 536; Downing v. MairshaJl, 23 id. section of the Revised Statutes at pp. 377, 378, 379. which for some reason is still per- 26 j r_ 5. 729, § 60, now § 100, petuated in the Consolidated Laws. Real Prop. Law. 23 1 R. S. 729, §§ 56, 58, S9, now 27 § 80, Real Prop. Law of 1896. §§ 97, 99, Real Prop. Law; i R. S. 734, § 102, now § 182, Real Prop. Law. t88 The Decedent Estate Law. § 21 quantity of the trustees' estate, i. e., whether it is a qualified fee simple defeasible, or an estate pur autre vie. We shall have occa- sion to refer to this subject again, and it need only be stated gen- erally at this point, that the better opinion of the authorities seems to be that trustees of tlie third express trust purpose take a fee qualified as to a devolution by descent, and defeasible as to any limitations over. But the adjudications are far from uniform.^^ In so far as the validity and integrity of the trust itself is con- cerned, it makes very little difference (except as to certain limita- tions over) wihether trustees take a power in trust- or a fee de- feasible and qualified, or the legal title in some other form, for trusts of powers are subject to the same restrictions and are as imperative as express trusts.^* BeneficiEiries. Trusts to receive the rents and profits of real property, and to apply them to the use of beneficiaries, may be for the 'benefit of any number of persons, whether in esse or not in esse,^" provided that the trust term is measured by not more than two lives in being.'^ The lives determining the duration of the trust term need not be beneficiaries,^- Perpetuities in Trusts. In devising lands on trusts, it is neces- sary that the diiration of the trusts should in som^e mianner be lim- ited express'ly for not longer than two lives in being when the will takes effect. Within that period, as just stated, any number of beneficiaries in esse or not in esse may receive the benefits or usu- fruct of the trusts. But a trust to receive and apply income to the use of four or five persons, without any other specification, is a trust for four lives and it, consequently, transcends the lawful 28 These points are outlined with 9, 14; Schermerhorn v. Getting, 131 reference to the authorities in the id. 48; Bird v. Pickford, 141 id. 18. author's (3d ed.) Real Prop. Law siHobson v. Hale, 95 N. Y. at p. of New York, and need not be again 6n ; Crooke v. County of Kings,, repeated. 97 id. 421; Baiky v. Bailey, 97 id. 29 See the authorities cited, 460. Fowler's Real Prop. Law (3d ed.), 32 crooke v. County of Kings, 97 483, 644, 645. N. Y. 421 ; Bailey v. Bailey, id. 3" Oilman v. Reddington, 24 N. Y. 460; Stringer v. Young, 191 id. 157. § 21 Trusts for Accumulation. 189 period and is void.^^ It is a custom of conveyamcers, therefore, either to divide the trust estate into as many shares as there are beneficiaries and limit each share in trust for not more than two lives in being/* or else to limit the entire estate expressly for two lives in being.'^ Where the trusts are not separatdy framed, but the interests of the beneficiaries are given in shares, the separable and distinct character of the trusts necessarily results.^" But in a testamentary trust an intention to separate the trusts must be ap- parent from the will itself. If the estate is to be kept intact and by any chance the separate trusts are so involved as not to be liber- ated from the trust estate at the expiration of two lives in being the trust term transcends &e laiwful limit and is void as a perpetuity.^^ Semble, in determining .W'hether the trust violates the rule against perpetuities, only the duraition of the trust term should be consid- ered, not the nature of the trust property or the objects of the trust.'® But this must be taken with qualifications, for if the trust is to alienate there is no suspension of the power of (alienation. Trusts for accumulation. A trust for accumulation of the rents and profits of realty is among the enumerated or express trusts,'" and this is one of the express trusts which suspends, the power of alienation.*" But a trust for accumulation is subject to a restriction of its own,*^ apart from the rule directed against other perpetuities. A trust for accumulation can be now .madie in this State onlly for 33 Ahern v. Abern, 52 App. Div. ^^ See the authorities cited, 356; Jennings v. Jennings, 7 N. Y. Fowler's Real Prop. Law (3d ed.), 547; Central Trust Co. v. Egleston, 462. i8s id. 23; Whitefield v. Crissman, "Leach v. Godwin, 198 N. Y. 35. 55 Misc. 468. This was a trust of personalty, but 2* Corse V. Chapm'&n, 153 N. Y. the reasoning is entirely applicable 466, 471 ; Walker v. Taylor, 15 App. to a trust of real property. Div. 452, 455 ; Quade v. Bertsch, 65 38 Ka.hn v. Tierney, 135 App. Div. id. 600; Deniison v. Denison, 103 id. 8g8. 523, 185 N. Y. 438; Cushman v. s' § 96, Real Prop. Law. Cushman, 116 App. Div. 763; Ogdeni ^oRatjjgy y Kuhn, 97 N. Y. at V. Ogden, 40 Misc. 473; Matter of p. 31. Hoffman, 65 id. 126. *i § 61, Real Prop. Law. 35 Bindrim v. Ullrich, 64 App. Div. at p. 448, and cases there cited. igo The Decedent Estate Law. § 21 the benefit of minors, and must terminate with, at, or before, the expiration of their several minorities.*^ If for minors not in being the accumulation must begin within the time specified in the rule against perpetuities for the absolute vesting of future estates.*^ If the accumulation is directed to continue beyond minorities, the direction is void only for the excess** and it does, not necessarily vitiate the entire limitation, provided it vest within the rule against perpetuities.*" Trusts for the accumulation of personalty are similar to a like restriction, except as to the time of vesting. Trusts to accumulate the income of personalty for the benefit of persons not in esse must vest, if at all, witliin or at the expiration of two lives in being.** Remainders Limited Over on Trust Estates. If trustees of express trusts talce a fee simple defeasible, then, a limitation of a remainder based on such a particular estate is not really a limi- tation of a " remainder " but of a fee upon a fee which is now per- missible by statute.*'' If the limitation over abridges or determines, as it must, the prior fee simple, it is always a coniditional limitation,*^ anid the posterior estate must comply with the rule against perpetuities.*^ If, on the other hand, the trustees of an express trust take an estate for the lives of others (pur autrie vie), then the re- mainder must be in fee.^" When a fee siinpliciter is mentioned in the statute it always means a fee simple absolute. If an estate is devised to trustees- of an express trust for their own lives (and there is no reason why, if they do not exceed two, the limitation should not so run) a common law remainder certainly may be limited thereon. But if there are more than two trustees the remainder would be accelerated after the death of the two first named.^^ If trustees of realty take a fee simple, defeasible as to duration and qualified as to descent, any limitation of a fee over, or of " a ^2 § 61, Real Prop. Law. " §§ 42, 50, Real Prop. Law. *s § 42, Real Prop. Law ; Manice ersonal estate shall be made to such witness, and such will can not be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respect- ing the execution of the said will, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and" he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them. Formerly 2 R. S. 65, §§ 50, 51 : § 50. If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of such witness, the Said devise, legacy, interest, or appointment, shall be void, so far only as concerns such witness, or any claiming under him ; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.i' § 51. But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such wit- ness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them.i' 18 Repealed, § 130, Decedent Es- "Repealed, § 130, Decedent Es- tate Law. late Law. § 27 Devise or Bequest to Subscribing Witness. 223 Comment. By the civil law after the time of Justinian, one in- stituted " heir " could not be a witness to a will, as he was re- garded as one person with the testator (i. e., a continuation of the legal persona), and if the will could not be proved without him, it was invalid.-" But legatees and persons taking a benefit under a will by way of trust were not forbidden to be witnesses, because they 'were not universal successors of the deceased.^^ The iecclesiastical law of England seems prior to the Statute of Frauds to have followed much the same rule as the civil law, for Swinburne states, " that where somewhat is bequeathed unto a witness this will is not sufficiently proved for those legacies; but for the rest of the will it seemeth to be sufficiently proved." -- After the English Statute of Wills"^ had made land directly de- visable, the Statute of Frauds^' required to the validity of a devise, that it should be attested by three or four credible witnesses.^' But a written will O'f goods and chattels was not affected by the Statute of Frauds and two witnesses sufficed, but not one, as one witness by the civil law was as no witness.^" We have seen that in respect of bequests of personalty, Swinburne was of the opinion, that by the old law interest of the attesting witnesses did not destroy the will, but only the legacy to the witness. But after the Statute of Frauds regulating devises of lands, the courts which had gained jurisdiction of devises began to exclude any attesting witnesses who had any interest however remote.-^ Powell on De- vises has given us the first and best short account of the growth of this doctrine, and the consequent inconvenience to titles.^^ He is abundantly confirmed by the testimony of Blackstone^" and Kent.^o So great was the uncertainty of devises, by reason of the ex- clusion of attesting witnesses for interest, that finally parliament 2° Inst., 2, 10, 10. 27 Helliard v. Jennings, Com. Rep. 21 Inst, 2, 10, II. 91, Freem. 510; i Ld. Raym. 505; 22 Swinburne on Wills, 632. Carthew, 514. 2332 Hen. VIII, chap. I. - ^i Powell, Devises, 1 12 sq. 2*29 Car. II. 29 2 Coram. 377. 25 See under § 21, supra. ^^ 4 Comm. 508. 26 4 Burn's Eccles. Law, 122 ; and see above, under § 21, Decedent Es- tate Law. 224 The Decedent Estate Law. § 27 deemed it better to deprive the witness of his interest or legacy, rather than to have the will thereby destroyed. The English Stat- ute, 25 George II, chap. 6, was accordingly enacted to that end. This act did not extend to New York, but whether it was acted on in the Province of New York, as was the Statute of Frauds (which it amended, ailthough that statute also did not extend here), is problematical. In any event it was included by Jones and Varick among the English statutes extending here,^^ and thence it passed into the subsequent revisions of the statute law^^ and finally as amended into the Revised Statutes of 1830. As the revisers of the Revised Statutes considerably altered the re-enacted Statute of 25 George II, mentioned above, let us see how the act stood in the prior revision of 181 3, where it read as follows: "And be it further enacted. That if any person be a 7uitness to the execution of any will to whom any beneficial devise, legacy, interest or appointment affecting any real or personal estate, except charges on the real estate for the payment of any debt be given or made, such devise, legacy, interest or appointment shall, so far only as concerns such person or any claiming under him be void, and such person shall be admitted as a competent witness." This act in New York really amended the old Statute of Frauds (29 Car. 11).^^ It was nothing other than 25 Geo. II, chap. 6. The Statute of Frauds had received in England a sort of legisla- tive interpretation in the Act 4 & 5 Anne, chap. 16, § 14, whereby three witnesses are required to authenticate a nuncupative will; and it is declared that such as are good witnesses in a trial at com- mon law should be deemed good witnesses to prove a nuncupative will."''* This act of 4 & 5 Anne, chap. 16, was re-enacted in New York in 1774.^^ The Act 4 & 5 Anne was supposed to be a legis- lative interpretation of the Statute of Frauds, to the effect that the three or four credible iwitnesses required for a devise by the 31 See § 6 of the "Act to Reduce ^^ See Jackson ex dem., etc. v. the Laws concerning Wills into one Woods, i Johns. Cas. at p. 164. Statute," chatp. 47, Laws of 1787. ^^ See 4 Burn's Eccl. Law, no. S2i K. & R. 178, § 12; I R. L. of 355 N. Y. Col. Laws, 68g. 1813, 367, § 12. § 27 Devise or Bequest to Subscribing Witness. 225 Statute of Frauds should be those credible by the common law, i. e., without interest.^" Prior to the Revised Statutes the Act 25 Geo. II, re-enacted in New York as above stated, had received construction by the courts which generally adopted the English cases on English statutes. In the case of Jackson v. Woods, in 1799, it was held that where either husband or wife was a witness to a will containing a legacy or devise to either, the devise or legacy, was void by the statute, and the witness, therefore, competent.'^ In 1809 it was held that the statute was peremptory, and a devise to a witness to a will absolutely void to every intent.^' This ruling was obviously as- sumed as correct by the Court of Errors as late as 1824.^' The revisers of the Revised Statutes desired to soften the opera- tion of such a severe penalty, for the exigencies of those in articulo mortis often required haste in executing last wills, and only inter- ested witnesses might be at hand for the purpose. To forfeit the " birthright " of heirs and next oi kin, who were beneficiaries under a will which they inadvertently attested, the revisers thought hard law.*" It will have been perceived, that the present section of the De- cedent Estate Law is but a transcript of the Revised Statutes,*^ which were in turn an amendment of the English Act, 25 Geo. II, considered at length above. The " Notes of the Revisers," set forth in our appendix, give their reasons for the amendments proposed by them. Where a will could be proved without the tes- timony of a subscribing witness, he was to be excepted from the forfeiture, and was not to lose his legacy or devise. Secondly, where an heir-at-laiw, or next of kin, was a witness, they were 3^ See the Judgment of Pratt, Lord erroneous on the point, that a wit- Camden (cited in 4 Burn's Eccls. ness whose legacy was void was in- Law, p. 117), criticising Lord Mans- competent before the Revised Stat- field's opinion in the great case of utes. Wyndham v. Chetwynd. ^^ Jackson ex dem., etc., v. Dennis- *^ See Benson, J., Jackson ex dem., ton, 4 Johns. 31 1-. etc. v. Woods, I Johns. Cas. 163 ; ^^ Sharpsteen v. Tillou, 3 Cow. Hopkins v. Lane, 6 Dem. p. 17. 651. Cf. Thx Bois V. Brown, i id. 317, ^o See notes 9 and 10, Appendix 325; and Estate of Orser, 4 N. Y. II, ir-^-^o. Civ. Pro. Rep. 126, 136, which seem *i &ee above, p. 222. 15 226 The Decedent Estate Law. § 27 given their " .birtiiright " by statute, notwithstanding the forfeiture of their devise or bequest, unless such " birthright " exceeded in amount the legacy or devise, when the natural shares were cut down to correspond in quantum to the value given by the will.** But in no case could such a devisee or legatee take more than their " birthright." *^ Executors and Testamentary Trustees as Attesting Witnesses. Under tlie Revised Statutes it was at one time assumed, that an executor or a testamentary trustee was incompetent under this section unless he renounced.** But now this doctrine is confined to a case where an executor is also a legatee.*^ In McDonough v. Lougblin,*" it was held that an executor is not disqualified by rea- sion of his title to statutory fees alone, and this decision has been cited and approved by the Court of Appeals.*' Such appears to be the construction now of the surrogates' courts.*^ Even a legacy or bequest of an attesting witness, who is an executor or trustee, given as compensation for such service, is held to be not such a bene- ficial devise, legacy, or interest as the statute avoids, in case such executor's or trustee's testimony is indispensable to prove the wili.*' When Attesting Witnesses Do Not Forfeit Legacy or Devise. Since the Revised Statutes whenever a will may be or is in fact proved without the aid of a subscribing witness who is a legatee or devisee, his legacy or devise is not forfeited under this section, which is allowed to refer only to cases where the testimony of the interested witness is indispensable, and actually taken.°" Thus *2 See notes 9 and 10, Appendix »* Butler's Inventory, i Tucker, 87. II, infra. *3 Pruyn v. Brinkerhoff, 57 Barb. *3 Estate of Orser, 4 N. Y. Civ. 176; Matter of Will of Wilson, 103 Pro. Rep. 126, 136. N. Y. 374. Cf. Matter of Burke, ** Burritt v. Silliman, .13 N. Y. 93. 5 Redf. 369. *B Lane v. Lane, 95 N. Y. 494. ^o Caw v. Robertson, 5 N. Y. 12S ; 4^20 Barb. 238; and see Pruyn v. Cornell v. Wooley, 3 Keyes, 378; Brinkerhoff, 57 id. 176; Matter of s. c, 47 Barb. 327, affd., i Abb. Ct. Burke, 5 Redf. 369. App. Dec. 441 ; and 43 How. Pr. *'' Children's Aid Society v. Love- 475 ; 4 Abb. Pr. N. S. 40, sub. nom., ridge, 70 N. Y. 387, 392; Matter of Cornwell v. Wooley; Matter of Will of Wilson, 103 id. 374, 376; Johnson, 37 Misc. 334; Reeve v. Barnard v. Barnard, 7 N. Y. Supp. Crosby, 3 Redf. 74. 275 ; and see Rugg v. Rugg, 21 Hun, 383, affd., 83 N. Y. 592; Schoon- maker v. Wolford, 20 Hun, i6d § 27 Devise or Bequest to Subscribing Witness. 227 where a legatee in a will is an attesting witness to a codicil, which does not benefit him and is not proved, his legacy given by the will is not forfeited.^^ When Attesting Witness Forfeits Legacy or Devise. Wher- ever tlie will can not ibe proved without the evidence of an attesting witness, who jbenefits by the will, then the benefit is forfeited, whether the testimony of such witness is believed or not." But such witness nevertheless may be compelled to testify."^ Qualification Saving "Birthright." The part of this section saving the shares of those who would be entitled to take, on an intestate succession from testator, in case their legacies or devises are forfeited under this section, can apply only to next of kin or heirs-at-law of the decedent. It can have no reference .to other legatees or devisees who would not take on an intestaite suc- cession.^* Procedure When Devise or Legacy Forfeited. Whenever it is claimed that a devise or a legacy is forfeited under this section the claim or issue can not be tried on the probate of the will, but only when the devisee or legatee makes the claim either by action brought for tliat purpose, or on a final accounting or other pro- ceeding.^' Interest of Attesting Witnesses. There are other provisions of law relating to the interest of attesting witnesses which should be noticed. The Revised Statutes, as part of the reform indicated above, also provided that no creditor of a decedent whose debt was charged on the 'land should be incompetent as an attesting witness.'" In 1880 this section was in substance transferred to Part II of the Code of Civil Procedure, relating to surrogates' courts, where it now is.'^ Interest alone no longer disqualifies a witness as it did 51 Matter of Johnson, 37 Misc. 334. 211, 214; Estate of Orser, 4 N. Y. '2 Matter of Brown, 31 Hum, 166; Civ. Pro. Rep. 126, 136. Hopkins v. Lane, 6 Dem. 12, 16, 17. ^^2 R. S. 57, § 6, taken' from § 12, 63 § 2544, Code Civ. Pro. ; Matter 2 R. L. of 1813, re-enacting 25 Geo. of Eysaman, 113 N. Y. 62; Matter II, chap. 6, to same effect, of Beck, 6 App. Div. 211. s' § 2S'44, Code Civ. Pro. Cf. "See § 27, Decedent Estate Law. Matter of Eysaman, 113 N. Y. 162; 55 Matter of Beck, 6 App. Div. Matter of Beck, 6 App. Div. 211. 228 The Decedent Estate Law. § 27 at common law/' excepting in a few cases prescribed by statute.^" As these exceptions have no particular reference to attesting wit- nesses to a will, tliey need not be now considered at length under this section of the Decedent Estate Law. Waiver of Forfeiture of Legacy to Attesting Witnesses. Whether if all the beneficiaries under the will, the heirs-at-law, and next of kin of testator, waive the forfeiture made by the stat- ute, the attesting witness is in that event rendered competent with- out forfeiture is a grave question. Certainly part of the benefi- ciaries and next of kin or heirs-at-law may not waive the forfeiture,'"' and if all do, whether the witness is thereby rendered competent remains a question. The statute intended to qualify an interested attesting witness by taking away his interest. A waiver of forfeiture contradicts the statute."^ 58 § 828, Code Civ. Pro.; Seguine 61 C/. Matter of John Tonnele's V. Seguine, 2 Barb. 385. Will, 5 N. Y. Legal Observer, 254; ^' Chap. IX, Code Civ. Pro. Seguine v. Seguine, 2 Barb. 385. 6" Hopkins v. Lane, 6 Dem. 12, 16, 17- § 28 Rights of Action. 229 § 28. Action by child born after making of will, or by sub- scribing witness. A child, born after the making of a will, who is entitled to succeed to a part of the real or per- sonal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property ; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribu- tion or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed. Formerly § 1868, Code of Civil Procedure: § 1868. Action by child born after will, or by witness to will. A child, born after the making of a will, who is entitled to succeed to a part of the' real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a dis- tribution or partition of the property, or a contribution from other per- sons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed.^^ Comment. Section 1868 of the Code of Civil Procedure was the result of the late Mr. Throop's revision of the Revised Stat- utes, when re-enacted as Part II of the present Code of Civil Pro- cedure.*' He sitates in his note to section 1868: "2 R. S. part 3, chap. 8, tit. 3, sections 62-66, consolidated and much condensed." The sections of the Revised Statutes to which he refers are as follows : «2 Repealed, I 130, Decedent Es- «3 Chap. 178, Laws of 1880. tate Law. 230 The Decedent Estate Law. § 28 2 R. S. 456, §§ 62-66: § 62. In cases where, by the provisions of any statute, a child born after the making of a will, shall he entitled to succeed to a portion of the tes- tator's real and personal estate, such child shall have the same rights and remedies to compel a distribution of the personal estate, and a partition of the real estate, as are provided by law for next of kin and for heirs; -and shall in all respects be liable, in the same manner and to the' same ex- tent, to the creditors of his ancestor, in respect to the personal property delivered to him, and the real estate descended to him, as are herein pre- scribed in relation to next of kin and heirs. 8* § 63. Such child shall be authorized to recover of the legatees Tvho may have received any property or effects of the testator, the portion of such property or effects to which he may be entitled, by an action of replevin, or of trover or assumpsit, as the case may require; and shall also be en- titled to recover of the devisees of any real estate under the will of the testator, such portion of such real estate as shall belong to him.^s § 64. In cases where a distribution of such personal estate shall not have been made by the surrogate, to any such child born after the making of a will, the court of chancery shall have power to compel the same; and the said court shall have power also to compel just and equal contribu- tion by the legatees under such will, to make' up the portion of personal property to which such child shall be entitled.^s § 65. The court of chancery shall also have power to compel partition between the devisees of any real estate, and such child so entitled to a portion of such real estate, so as to enforce a just and proportionate con- tribution by each devisee.^' § 66. The foregoing provisions relative to a child after the making of a will, shall apply equally in all respects to every person who, being a wit- ness to a will, shall be entitled by the provisions of any statute, to re- cover any portion of the personal or real estate of the testator, from the legatees and devisees named in such will.^' After-Born Child Enabled. This section was, in its. original form, an enabling section, entitling an after-born child to a specific remedy in a case on the statute."" The remedy at law obviously «* Repealed, chap. -243, Laws of «' Repealed, chap. 245, Laws of 1880. 1880. «5 Repealed, chap. 245, Laws of ^^ Repealed, chap. 245, Laws of 1880. 1880. «8 Repealed, chap. 245, Laws of '^^ Now § 26, Decedent Estate Law. 1880. § 28 Rights of Action. 231 would have been very inadequate. In Mitchell v. Blain the rights of such child in a particular case were determined.'^'' This section expressly enables a post-testamentary child who is within the stat- ute to maintain an action against legatees or devisees,'^ and this right is extended by construction to assigns of devisees.^- In addi- tion, this section gives to the post-testamentary child, who is within the statute, the same rights that any other person has to compel a distribution of decedent's estate, or -to compel a partition of the same.'^ This section has no reference to a case where both the marriage of a parent and the birth oi a child are posterior to the making of the will, which it is claimed is thereby rendered inofficious {" tcstamentum inofUciosum"), or destroyed (ruptum), by reason of such subsequent birth.''* That condition of affairs is remedied hy another section of this act.'° Since the statute legitimating prior issue of parents by a subse- quent marriage of tlie parents''^ {legitimatio per subsequens mat- rimonium) it may, however, be daimed by such issue, if they were born before the civil marriage but after the making of the parent's ■will, that this section now applies to them. Subscribing 'Witness. A subscribing witness mentioned in this section is one referred to in the prior section of this act.'' 'Oj Paige, s88; 2 R. S. 4S5, § 64. ■?* Matter of Gall, 5 Dem. 374. 71 § 28, Decedent Estate Law ; '^ § 35, Decedent Estate Law. Rockwell V. Geery, 4 Hun, 606. '^ § 24, Domestic Relations Laiw. 72 Smith V. Robertson, 24 Hun, " gee 2 R. S. 457, § 66, supra, p. 210, 89 N. Y. SSS. 230; § 1868, Code Civ. Pro., supra, 73 Estate of Orser, 4 N. Y. Civ. p. 229. Pro. Rep. 126. 232 The Decedent Estate Law. § 29 § 29. Devise or bequest to child or descendant not to lapse. Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. Formerly 2 R. S. 66, § 52: § 52. Whenever any estate, real or personal, shall be devised or be- queathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate-'^ Doctrine of Lapse. Mr. Jarman 'in his admira/ble " Treatise on Wills " gives a concise account of the old doctrine of lapse, aippli- cable in New York before the Revised Statutes. He states " that it is a necessary consequence of the ambulatory nature of wills; which niot taking effect until the death of testator can communicate no benefit to persons who previously die ; in like manner as a deed can not operate in favor of those Who are dead at die time of the execution." " This doctrine of lapse applied indiscriminately to- gifts with and without words of limitation to heirs or to heirs of the body, and it also applied equally to bequests of personalty, even where -words of limitation to his executors or administrators had followed the bequest to a person deceased before the will took effect.*" Where mere words oi limitation, and not of substitution, '8 Repealed, § 130, Decedent Es- '"Ibid., supra; and see Matter of tate Law. Wells, 113 N. Y. at p. 403; Kim- 's Chap. XII (ist ed.). ball v. Chappel, 27 Abb. N. C. 437- § 29 Lapsed Devises or Legacies. 233 were added to a dievise or bequest to a person who dies before tes- tator, they did not prevent a lapse.'^ Such was the settled law of this State prior to the provisions of the Revised Statutes, set out above under this section.*^ There were, however, even before the Revised Statutes, certain recog- nized and settled exceptions to the rule, that legacies and devises always lapsed by the death of the legatee or devisee before the testator: Such as (i) if a testator devised or bequeathed property to "A," and in case of his death, under the age of twenty-one years, to " B," the gift to " B " took effect in the event that "A" died under twenty-one, either in %e lifetime of the testator or after- ward.*^ (2) Gifts to a class as joint tenants or even as tenants in common did not lapse, unless all died before the testator or the class was otherwise determined in testator's lifetime.** (3) Wher- ever an executory Hmitaition was limited on the failure of the preceding devisee to do certain acts after the testator's decease, iit would not be defeated by the death of such preceding devisee in the testator's lifetime. (4) Where an estate was limited to a per- son not in esse, with a limitation over in case he omit to do cer- tain acts, or in the event of his dying under twenty-one, or without issue, the devise over took effect, although the preceding devisee never came into existence.*' It will be seen that these exceptions are generally conditional limi- tations or executory devises.*' In other wordsi, " conditional limi- tations," or executory devises, were so construed, wherever possible, as to give effect to the subsequent limitations, in the event of the death of the first devisee in the lifetime of the testator. But there "Brett V. Rigden', Plowd. 340, ** Allen v. Callow, 2 Ves. 289, 34S, cited 113 N. Y. 403; 30 N. Y. cited, i Jarman on Wills, 297; and at p'. 4118. see Mowatt v. Carow, 7 Paige, p. «2Mowatt V. Carow, 7 Paige, 338, 337- 336; Bishop V. Bishop, 4 Hill, 138; *b gee Jarman's note 8 to i Powell Van Beuren v. Dash, 30 N. Y. 393, on Devises, ig6. 418. 86 Anderson v. Jackson, 16 Johnsi. *3 3 P. Wms. 113; 3 Bro. C. C. 382; In re Maben's Estate, 12 N. Y. 392; I Ves. & Bea. 385; i Jac. & Supp. 5, 6. Walk, i; I Russ. 517; Mowatt v. Carow, 7 'Paige, at p. 332; Savage V. Burnham, 17 N. Y. at p. 575- 234 The Decedent Estate Law. § 29 were many cases where such a construction could not be accorded without injustice, and then the Hmitation over naturally failed. The doctrine of lapse is sometimes invoked where a devise or legacy over is conditioned on the death of a prior devisee or legatee. But the solution of such cases, it is apprehended, depends more on the doctrine concerning conditions than on the doctrine of lapse, which applies strictly only to devises .and legacies without condition.''' Certainly, by separating the old cases bearing on lapse of unconditional devises and legacies from those other cases bear- ing on conditional limitations, the arrangement of both classes is much Siimplified, and greater precision of reasoning is attained. There may, of course, be cases on wills where the gift or devise is a conditional limitation in one event, and an absolute devise or bequest in the other. If the event happened, so that the first taker took absolutely, and not conditionally, and then such first taker died in the lifetime O'f the testator, the gift of course lapsed, and the conditional limitation over was out of the case and never could take effect in any event. Such seems to be the case of Calthoripe v. Gough, where £10,000 were given to trustees in trust for Lady Gough for hfe; and in case she should die in the lifetime of her husband, .as she should appoint, and in default O'f her appointment to lier children. But if she should survive her husband, then to her absolutely. She survived her husband, and died in the testator's lifetime. The Master of the Rolls held that the legacy lapsed, and the children were not entitled.** Lord Thurlow decided Doe v. Brabant on Calthorpe v. Gough. Before the Revised Statutes and under the old doctrines of lapse the general rules were, that a lapsed legacy or bequest passed to the next of kin,*" or if there was a residuary clause went into the residuary ,'" but lapsed devises passed to the heirs-at-law and not 8' See Downing v. Marshall, 23 N. 115, 127; Doane v. Mercantile Trust Y. at p. 370; Pimel v. Betjemann, Co., 160 id. 494, 499; Grinnell v. 183 N. Y. at p. 198. Rowland, 51 Misc. 132. 88 Cited 3 B. B. C. 395 ; Doe v. so Matter of Woolley, 78 App. Div. Brabant, 3 B. C. C. 393, 4 T. R. 703. 224 and cases there cited. Cf. Ward Cf. Matter of Arensberg, 52 Misc. v. Stanard, 82 id. at p. 390; Matter 261; of Whitting, 33 Misc. 274. 85 Riker v. Cornwall, 113 N. Y. I 29 Lapsed Devises or Legacies. 235 under a residuary clause."^ Tlie great changes introduced in these doctrines by this section and other new rules of tlie Revised Stat- utes will be next noticed. The Revised Statutes hofving subjected all limitations of future or contingent interests in personal property to the rules prescribed in that article of tliose statutes, relative to future estates in land,"^ the former differences in the doctrines of lapsed legacies and lapsed devises, apparent in the old law, are now much less emphasized than formerly in this State. Since the Revised Statutes the English cases relative to lapsed devises and to substitutional and conditional limitations, and those other cases concerned with lapsed legacies and with substitutional or conditional legacies are, however instructive, rarely decisive of the law of tliis State."^ The Revised Statutes, or their sequels, and the augmenting body of case law in the courts of this State resfWDnd to almost every legal requirement, and the early common law is consequently much superseded. Changes Made in the " Doctrine of Lapse " by the Revised Statutes. Having glanced at the doctrines prevailing before the Revised Statutes, we may consider next the changes made by the Revised Statutes.^* It will be observed that the statute saving cer- tain devises and bequests refers only to those devises and bequests to a particular child, or other specified descendant of the testator. It does not refer to devises and bequests to any other persons; with the result that the common-law doctrines concerning the lapse of legacies and devises still prevail in this State in respect of every devise and bequest which is not made specifically to a child or other descendant of the testator."^ If the gift or devise is to *i Youngs v. Younigs, 45, N. Y. tion of Jarman on Wills, especially 254; Matter of Allen, 151 id. 243; chap. 18, "Acceleration of Re- Moffett V. Elmendorf, 152 id. 475, mainders," and chap. 49, " Death of 48s ; Cruikshank v. Home for the Prior legatee in Testator's life-time." Friendless, 113 id. 3:^7, 353; Adams s*2 Ri. S. 66, § 52, p. supra. V. Anderson, 23 Misc. 705, 707; Gal- 95 Van Beuren v. Dash, 30 N. Y. lavan v. Gallavan, 31 id. 28a. 393; Savage v. Burniham, 17 id. at 92 I R. S. 773; §§ I, 2, now § II, p. 575; Matter of Wells, 113 id. 396; Personal Property Law. Langley v. Westchester Trust Co., S3 Many of these irrelevant cases 180 id. 324, 329; Roberts v. Bos- are cited in the 5th English edi- worth, 107 App. Div. 511. 236 The Decedent Estate Law. § 29 children or descendants as a class, and not to them as individuals, the statute has no application, at least until after the time specified for determining the class."" If that time by any chance haippens before the death of the testator, and then one of suich a class, s» vested specifically in right, die before the testator, the rule stated in this section would still apply, and on his death his fixed shaie would pass under this section. It is only when the rights of chil- dren or descendants as a class are not determined before testator's deajth, that this section does not apply in the event of the death of one of tliem before testator."^ The notable decision in Van Beuren v. Dash"* settled definitely the meaning of the words " other descendant " in the statute."* It was there held, that diey meant the lineal descendants of tes- tator, other than children oi the testator, and that they did not mean to include any one entitled collaterally, in certain events, to take from testator (had he died intestate) under the Statute of Descents, such as sons of nephews. The word " descendant " in this section w.as to be understood in its popular meaning, and not in its possible technical or wider meaning, wliich includes persons entitled to succeed to an inheritance or personalty under the stat- utes regulating, succession ab intestato} This decision excluded collaterals from the (benefit of the section, and it has been con- stantly adhered to, without distinction, in later cases.^ It was also in line with earlier decisions.^ The statute benefits only the children or other lineal descendants of testaitor, and vests in them only the devise or legacy to their antecessor. The statute does not let in other persons entitled col- laterally to take from deceased legatee, such as the widow or the husband of the original devisee or legatee.* Nor does it let in the creditors of the deceased devisee or legatee whose devise or legacy has lapsed." '6 Pimel V. Betjeraann, 183 N. Y. S9 gge § 29, supra. 194; Matter of Redmond, 50 Misc. 1 Williams on Seisin, 74. 74, 77; Langley v. Westchester Trust 2 Gill v. Brouwer, 37 N. Y. 549. Co., 39 id at p. 7S7; Moffett v. El- ^ Armstrong v. Moran, i Bradf. mendorf, 152 N. Y. 475, 484 314. i" Savage v. Burnham, 17 N. Y. at ^Cook v. Munn, 13 Abb. N. C. P- 575- Cf. Matter of Depeiriss, 344; s. c, noto: 2 Dem. 49. no App. Div. 431. sTuttle v. Tuttle, 2 Dem. 48; Mat- 's 30 N. Y. 396. ter of Hafner, 45 App. Div. 549, SS7- § 29 Lapsed Devises or Legacies. 237 If a devise or bequest is to a child by name, or individually, and the child die, leaving issue, before the testator, the issue of such child take under the statute, by substitution and not through the deceased legatee or devisee or by way of representation from him.® The sam.e principle applies when the testamentary gift or devise is to a particular grandchild who predeceases the grandfather. The issue of such grandcliild are then substituted by the statute,' and the legacy or devise vests in them precisely as if their names had been introduced in the devise or bequest in the place of their ante- cessor. The statute has no application where the benefited child or other descendant w,ho predeceases the testator in turn leaves no child or other descendant.^ Meaning of Death " During Lifetime of Testator." The death of a particular devisee or legatee, referred to in this statute, is not confined to a death after the making of the 'will. It was said in Barnes v. Huson : " " Where the proposed devisee or legatee, being a descendant of the testator, had died before the testator, leaving lineal descendants, who were, of course, equally the descendants of the testator, the presumption is strong that, except from ignor- ance, inadvertence or accident, the will would have been so altered as to continue the designed provision in the line which had been intended. Therefore, the legislature designed to provide a remedy in such a case, against the consequences of such ignorance, inad- vertence or accident, by enacting, that in case the proposed devisee or legatee, who had died before the testator, was a child, or other descendant of the testator, then the issue of such proposed devisee or legatee should take in-his place. No reason can be perceived for any different rule, whether the death happen before or after the making of the will ; either occurrence is entirely within the mischief intended to be remedied." Certainly this reasoning ap- pears entirely sound and any other construction undesiraible.^" 6 Cook V. Munn, 12 Abb. N. C. 393; Vernon v. Vernon, 53 id. 351, 344; Tuttle V. Tuttle, 2 Dem. 48; 362; Grinnell v. Howland, 51 Misc. Pimel V. Betjemann, 183 N. Y. 194. 132. ' Matter of Hafner, 45 App. Div. = 60 Barb. 598. 549. 553- ^^ Cf- Pimel v. Betjemann, 183 N. * Savage v. Burnham, 17 N. Y. Y. 194; revg., 99 App. Div. 561. 561 ; Van Beuren v. Dash, 30 id. 238 The Decedent Estate Law. § 29 Exceptions to Doctrine of Lapse. It has .been stated above, under this section, in substance, that the doctrine of lapse had formerly no application to certain classes of devises and bequests/"^ Those exceptions in tlie old law are fundamental and remain ex- ceptions at present. They may be briefly referred to as (i) De- vises and bequests to a class, the members of which are determin- able on, or after, the death of testator. (2) Substitutional devises and limitations over on collateral conditions. (3) Remainders lim- ited on void particular estates. (4) Death of remainderman after testator. ( I ) Devises to a Class. The doctrine of lapse has no application to devises or bequests to a class when the members of the class are to be determined only on or after the death of the testator.^* It is otherwise if the members of the tlass are determined before the death of testator (by some event specified in the will, for then the members no longer take as a class, but individually as persona: designates, and on the death of any one entitled individually a de- vise or a legacy to him fails, under the general doctrine of lapse.^'^ A devise to a " class," like a devise to a corporation, is suffi- ciently definite and certain, although what members of the class will be entitled is always uncertain or contingent until the time for division arrives.^* It will be observed that a devise or legacy to a class, the con- .'ttituents of which are to be ascertained after testator's death, is- very like a devise or bequest to a corporation. A devise to a cor- poration is one to the corporate whole, not to the members indi- vidually. A class, before its constituents are determined, may be regarded, indeed, as a gMa.yi-corporation, and a devise or a bequest to a class as a whole can not lapse, unless all its individual mem- bers die before the testator. If all the members of the class so die,, then the class itself would be extinct, and the devise or bequest '^^ Supra, p. 233. zog v. Title Guarantee & Trust Co., 12 I Jarman on Wills, 29S ; Sav- 177 id. 86, 97 ; In re Howard's Es- age V. Burnham, 17 N. Y. at p. 575; tate, 3 Misc. 170; 23 N. Y. Supp. Hoppock V. Tucker, 59 id. 202, 211. 836. 13 I Jarman on Wills, 297 ; Matter ^* Herzog v. Title Guarantee & of Kiraberly, 150 N. Y. 90, 93; Mat- Trust Co., 177 N. Y. 86, 97. ter of Russell, 168 id. 169, 175; Her- § 29 Lapsed Devises or Legacies. 239 would ordmarily lapse, under the general doctrine of lapse. ^^ But where only some of the members of a class die before the testator, the validity of a devise or bequest to the class as a whole is not affected thereby.^" The fact that a member of a class dies before the testator is irrelevant to the doctrine of lapse, if his interest is expressly contingent on his survivorship. A devise or bequest to a class may in so far as the individuals are concerned be regarded also as conditional, and therefore on that ground the doctrine of lapse has no application to the individual interests before the time fixed for division or distribution.^' (2) Substitutional Devises or Bequests and Limitations over on Collateral Conditions. It is very correctly stated in the opinion in Downing v. Marshall, that the doctrine of lapse has no application to substituted gifts.^* The same statement is douibtless true of all limitations over, on conditions which cleariy take into account the death of the first named devisee or legatee.^" By " substituted gifts " are meant gifts to take effect in the alternative, or in the event that the intended first taker die in the testator's own life- time. What words import a substitution is a matter of construc- tion as said in Downing v. Marshall. But not every word of limitation imports a substitution, in case the principal devisee or legatee die before the testator. Thus words descriptive of the estate taken by the first devisee, such as devise to "A" and his heirs, or bequest to " B " and his personal repre- sentatives, will not be assumed to import an intention to substitute heirs or representatives in case "A" or " B " die before testator.^" Such words are mere words of limitation and not of substitution or purchase, even since the abolition of the rule in Shelley's case.^^ 15 I Jarman on Wills, 295. i' Savage v. Burnham, 17 N. Y. 16 Savage v. Burnham, 17 N. Y. at p. 575. at p. 57S; Rudd v. Cornell, 171 id. 20 Kimball v. Chappel, 27 Abb. N. 114, 132; Pirael v. Betjemann, 183 C. 437; BoUes v. Bacon, 3 Dem. 43; id, 194, 199; Gilliam v. Guaranty Matter of Wells, 113 N. Y. 396. Trust Co., 186 id. 127, 133. Cf. Matter of Depeirris, no App. "Matter of Baer, 147 N. Y. 348, Div. p. 422. 354. ^^Ibid., supra. 18 23 N. Y. at p. 370 ; Matter of Tienken, 131 id. 391, 403, 405 ; Stokes V. Weston, 142 id. 433. 240 The Decedent Estate Law. § 29 It must be apparent that where a devise or hequest is intended to be clearly substitutional for one that fails by reason of the death of the first taker in testator's lifetime, the doctrine of lapse has no application.^^ Whether the second devise or bequest fails because the first fails is, however, a more difficult question, although one not related to the doctrine of lapse. This question depends on the existing law of remainders and conditional limitations. If the de- vise is to take effect as a conditional limitation it is very, clear that the limitation over will take effect even if the first devise fail by reason of tli« death of the first taker in the testator's lifetime.^' But if the devise is clearly one which takes effect as a contingent remainder, limited on a life estate which fails, iby reasion of the death of the intended tenant of the particular estate in the testator's lifetime, it is not so clear from the cases that the contingent re- mainder may not still fail, even since the Revised Statutes.^* (3) Remainders Limited on Void Particular Estates. Since the old Statute of Wills the modem judicial tendency doubtless is to treat all future limitations raised by devise as executory devises, or conditional limitations, and not as remainders, so as to preserve the secondary gifts over.^^ When the later editions of Mr. Jar- man's Treatise on Wills speak of accelerating remainders, by rea- son of tlie death before testator of the tenants of the particular estates supporting such remainders, it will be found that the cases referred to are invariably cases turning on devises.-'' The first Enghsh edition of Jarman more properly speaks of the accelera- tion of ulterior estates, and not of acceleration of remainders. Yet at times even in a will an ulterior estate is a remainder, and not an 22 Downing v. Marshall, 23 N. Y. id. at p. 97 ; Cochrane v. Schell, 140 at p. 370. id. at p. 526; Morton Trust Co. v. 23 Norris v. Beyea, 13 N. Y. 273 ; Sands, 195 id. at p. 37. Cf. § 57, McLean v. Freeman, 70 id. 81, 85; Real Prop. Law; Matter of Arens- Williams v. Jones, 166 id. 522, 537; berg, 52 Misc. 261. Kalish V. Kalish, 166 id. 368, 379; 25 Pearne, Conting. Rem. 272, 274, U. S. Trust Co. V. Hogencamp, 191 381, note; Perkin's Profitable Book, id. 281, 28s; Lord v. Lord, 44 Misc. §§ 567, 568; Kalish v. Kalish, 166 N. 530. Y. at pp. 378, 379; Ranken v. Janes, 2'' Campbell v. Rawdon, 18 N. Y. i App. Div. 272. at p. 421 ; Schettler v. Smith, 41 id. 26 gth American Ed., Jarman on at p. 347; Hennessy v. Patterson, 85 Wills, vol. i, p. 568. § 29 Lapsed Devises or Legacies. 241 executory devise, for it must be rememibered that a devise will never be adjudged an executory devise if it can take effect as a remainder.^^ Where a devise over is in law indubitably a contingent remain- der, and the particular estate preceding it fails in the lifetime of testator, by the death of the tenant of the particular estate, it is difficult to affirm in every case that the validity of the limita- tion as a whole should be maintained or regarded as unaffected by thie failure of the particular estate.^* This difficulty will be, per- haps, better illustrated if we refer to a remainder in a chattel real such as a tenn in esse for fifty years. Estates in chattels real are subject to the statutory rules governing particular legal estates and remainders carved out of an estate in fee simple.-" If a testator possessed of a term of fifty years, worth, say, net ten thousand a year, s'hould bequeath it to his son for his life or forty-five years (and no longer) if the son so long live, remainder to a charitable corporation nominatim, and the son should then die without issue before the father, would the remainder to the charitable corpora- tion fail, because the particular estate failed? It was obviously the intention of testator to give but a very small part of the term to charity, but if the limitation of the remainder is supported, even thoug'h the particular estate fail, ithe charity will take the wihole residue of the term as against the representatives of the father's estate. If, on the other hand, the law of remainders ap- plies, the devise over may fail.^° (4) Death of remainderman after testator. The doctrine of lapse has no application to the death of a remainderman after tes- tator, although the particular estate may not yet have terminated."^ "'Manice v. Manice, 43 N. Y. at 29§§ 33^ ^g^ Real Prop. Law. p. 368; Miller v. Van Schwarzen- ^'>Cf. Schettler v. Smith, 41 id. stein, SI App. Div. 18, 23. at p. 347; Cochrane v. Schell, 140 '8 See cases cited note 15, Fowler, id. at p. 526; Morton Trust Co. v. Real Prop. Law (3d ed.) 256; Sands, 195 id. at p. 37. Campbell v. Rawdon, 18 N. Y. at p. ^ Stokes v. Weston, 142 id. 433. 421 ; Schettler v. Smith, 41 id. at p. Cf. Finley v. Bent, gs id. 364 ; Mat- 347; Hennessy v. Patterson, 8$ id. at ter of Weinstein, 43 Misc. 577. p. 97; Cochrane v. Schell, 140 id. at p. 526; Morton Trust Co. v. Sands, 19s id. at p. 37- 16 242 The Decedent Estate Law. § 30 § 30. Reception of wills for safe keeping. The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall re- ceive and deposit in their offices respectively, any last will or testament which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the per- son depositing the same. Formerly 2 R. S. 404, § 67: § 67. The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor hy law, shall receive' and de- posit in their offices respectively, any last will or testatmeht which any person shall deliver to them for that purpose, and shall give a written re- ceipt therefor to the person depositing the same.32 Comment. Under section 21 of this chapter some tentative remarks were advanced concerning the public execution of wills and testaments before public officers, and the subsequent deposit of such wills in public offices.^* In some of the Continental states all wills not holographic are thus executed in order to pre\ent fraud and drcumvention. The revisers of the Revised Statutes were evidently of the opinion, that the mere deposit of wills in public offices v/ould be conducive to a like result, and Hhey proposed the original of this section, with this idea in mind.'* It may, however, be doubtful in practice whether a mere public deposit of a will without its pu'blic execution would produce the desired result. 52 Repealed, § 130, Decedent Es- ^' See p. 122, supra. tate Law. 34 See note 12, Appendix II, infra. § 31 The Decedent Estate Law. 243 § 31. Sealing and indorsing wills received for safe keeping. Such will shall be inclosed in a sealed wrapper, so that the contents thereof can not be read, and shall have indorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed. Formerly 2 R. S. 405, § 68: § 68. Such will shall be enclosed in a sealed wrapper, so that the con- tents thereof cannot be read, and shall have endorsed thereon the name cf the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or ex- amined, until dehvered to a person entitled to the same, as hereinafter directed.35 Comment. This section and sections 30 and 32 of the De- cedent Estate Law are complementary, one of another. They all relate to the same act -^ — a formal deposit of a last will and tes- tament in a public office. When the deposit is made by the tes- tator in person it certainly affords some evidence of animus tes- tandi or publication, and as in the instance of holographic wills the courts might then requiire less rigid proofs of the publication of a will thus deposited by the testator himself.^" 35 Repealed, § 130, Decedent Es- and Dan v. Brown, 4 Cow. at p- tate Law. 491- 36 See supra under § 21, p. 121 ; 244 The Decedent Estate Law. § 32 § 32. Delivery of wills received for safe keeping. Such will shall be delivered only, 1. To the testator in person; or, 2. Upon his written order, duly proved by the oath of a subscribing witness; or, 3. After his death to the persons named in the indorse- ment on the wrapper of such will, if any such indorsement be made thereon ; or, 4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county. Formerly 2 R. S. 405, § 6g: § 69. Such will shall be delivered only, 1. To the testator in person : or, 2. Upon his written order, duly proved by the oath of a subscribing wit- ness : or, 3. After his death, to the person named in the endorsement on the wrap- per of such will, if any such endorsement be made thereon : or 4. If there be no such endorsement, and if the same shall have been de- posited with any other officer than a surrogate, then to the surrogate of the county .37 Comment. Under the two preceding sections of this chapter some remarks have been offered touching the results of the pub- lic execution and the public deposits of last wills and testaments. That such a course is foreign to the habits of English-speaking peoples has been intimated in the introduction. But an argument based on haibit and tradition is of slight value. The tendency of modern jurisprudence is to eclecticism in practice, and to a system of law which shall be general to mankind. It will be found on an examination that even Roman law benefited by absorption, and tliat in England and America the most philosophical branches of jurisprudence are to be found in the departments which are most influenced by the laws common to all nations. 3' Repealed, § 130, Decedent Estate Law. § 33 The Decedent Estate Law. 245 § 33. Opening wills received by surrogate for safe keeping. If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such sur- rogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof ; or until required by the authority of some competent court to produce the same in such court. Formerly 2 R. S. 405, § 70: § 70. If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office', there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the <;ustody thereof; or until required by the EUthority of some competent court to produce the same in such court.'°5 Comment. This section and those immediately preceding it are part of the same general reform — the proper custody of last wills and testaments.^* The proper custody of last Wills and testaments after execution is at all times of legal importance.*" But when the will is allographic, as it must be in such a case, and is signed and attested only by the marks of the signatories, the custody be- comes of the greatest importance. In such cases where the attest- ing witnesses, as well as the intending testator, have made their signatures by marks, it may be almost impossible to prove the will when such attesting witnesses are dead before attempted probate, unless the custody of the will raises a presumption of publication. A resort to these sections in all such instances would be expedient. 58 Repealed, § 130, Decedent Es- <" Matter of Hopkins, 97 App. Div. tate Law. at p. 128. ''§§ 30, 31, 32, Decedent Estate Law. 246 The Decedent Estate Law. § 34 § 34. Revocation and cancellation of written wills. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will it- self was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. Pormerly 2 R. S. 64, § 42 : 5 42. No will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some writing of the testator, declaring such revo- cation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.*"* Comment. As all wiills are "ambulatory" until death *^ (or in the language of the civilians, " ambulatoria enim est voluntas usque ad vitce supremum exitum," ''=) the legal correlaitive is that they are always revocable. The Roman or civil law contained minute provisions concerning the revocation of wills, and the general frame work of tihat system, as finally developed, is not dissimilar in re- sult and in principle to the rules ultimately recognized after much fluctuation by the common law. Even before the Statute of Frauds"^ had regulated this uncertain subject, the tendency of the «* Repealed, § 130, Decedent Es- « Pr. 4, D. 34, 4. tate Law. ^29 Car. II. "Co. Litt. 112; 2 Black Coram. 512; 4 Kent Coram. 520; i Jarman «n Wills, chap. 12 (ist ed.). § 34 Revocation of Wills. 247 canonists was to regard the revocation of tesitamemts of personalty as controlled largely by the principles of the civil law.** Buit the law of England toucliing revocation, after the Statute of Wills and before the Statute of Frauds, was extremely unsatisfactory, as the revocation might be by parol.*^ In England the Statute of Frauds,*" in sections 6 and 22, at- tempted to cope with this subject and to reform the law so as to pre- vent frauds and perjuries in the revocation of wills. The sixth clause of the Statute of Frauds (29 Car. II, chap. 3 ) was amended by an act (29 Car. II, chaps. 26, 36) so as to make a clause of a devise revocable.*' The Statute of Frauds was undoubtedly acted on by the counts held in the Province of New York, although it was passed after New York ihad a settled government of its own and New York was not named in it. The English Statute of Frauds was consequently one of the statutes selected by the first revisers of this State, authorized to revise the statutes of Englarrd deemed to be in force in New York prior to independence. Thus the sub- stance of such statute passed permanently into the statute law of the State.** In the first New York revision of the English Stat- ute of Frauds,*" the amendment to the sixth clause of the original act (29 Car. II, chap. 3) seems to have been overlooked. But Kent and Radcliffe inserted such amendment in the subsequent re- vision of the statute in 1801.^" Early Law of New York. Prior to the Revised Statutes, the New York Statute of Wills of 1813, which was a transcript of the old English Statute of Wills, as amended by the 6th and 22d section of the Statute of Frauds,^^ provided, in substance, that **Swinb. pt VII, §§ IS, 16; 4 «i Greenleaf, 387, § 3- Kent Comm. 521, impliedly con- ^"i K. & R. 180, § 3; Lovell v. cedes this. Quitman, 88 N. Y. at p. 382. *5 Burn's Ecc. Law, 233 ; Swin- ^i 29 Car. II, chap. 3, as amended burne, pt. 7, § 15; Cro. Jac. liS, 29 Car. II, chaps. 26, 36; 29 Car. II, pi. 2; id. 497. chap. 3, was re-enacted in the Stat- es 29 Car. II, chap 3. See this ute of Wills; i J. & V. 278; i Gr. statute set out in full, Fowler, Pers. 386; and 29 Car. IT (chaps 26, 36) Prop. (2d ed.). Appendix. was included in i K. & R. 178; *' Lovell V. Quitman, 88 N. Y. at i R. L. 364; Lovell v. Quitman, 88 p. 382. N. Y. p. 382. ^^ Supra, pp. 51, 108; Waterman v. Whitney, 11 N. Y. at p. 160. 248 The Decedent Estate Law. § 34 no last will and te&tament " shall be revocable, or be altered, other- wise than by some other will or codicil in writing, or other writing of the party, to such last will and testament, declaring the same, and signed, attested and subscribed " in the manner prescribed for a will, " or by burning, canceling, tearing or obliterating such last will and testament, by the testator himself, or in his presence, and by his direction and consent." ^^ It was this section of the Statute of Wills, as it stood in this State in the year 1813, which the Revised Statutes of 1830 under- took to revise " so as to guard more effectually against frauds, and to render it conformable to the construction it had received." ^^ Prior to the Revised Statutes, the law of New York concerning the revocation of wills and testaments conformed substantially to the law of England, which had prevailed in the Province of New York.'* The English Statute of Frauds and its re-enactment here in the old Statute of Wills had not taken away revocations of wills by acts constituting a revocation in law. The statutes related to express revocations only, and an .alteration in testator's circum- stances, °' such as parting wiith the thing devised or bequeathed,'''' or testator's subsequent marriage and birth of issue,'^ or a satis- faction of legacies by portions, all operated as imiplied revocations in law, outside of any provision of the Statute. Under the old Statute of Wills, as construed prior to the Revised Statutes, express revocations might be effected in three ways : ( i ) By some other will or codicil in writing ;°^ (2) by an act done to the instrument itself, viz., canceling, burning, tearing, or obliteration ; '" (3) by some writing executed animo revocandi, and attested and subscribed in the manner required by the statute for a last will and testament.^" 52 § 3 of 2 R. L. of ;8i3, p. 365. ^7 Havens et ux. v. Van Den 63 See Reviser's Note 13, Appen- Burgh, i Den. 27. dix II, infra. 68 j j>_ l 364 ; Jackson, ex dem., M Supra, pp. 48, 52 ; Dan v. Brown, etc. v. Potter, 9 Johns. 312, 314. 4 Cow. 483 ; Simmons v. Simmons, ^9 Jackson, ex dem., etc. v. HoUo- 26 Barb. 68, 74; Waterman v. way, 7 Johns. 394; Dan v. Brown, Whitney, 11 N. Y. at p. 160. 4 Cow. at p. 488. 55 Betts V. Jackson, 6 Wend, at p. ^^ Jackson, ex dem., etc. v. Potter, 176. 9 Johns. 312, 314; Betts v. Jackson, 56 In Matter of Nan Mickell, a 6 Wend, 173, 176. negro girl, 14 Johns. 324. § 34 Revocation of Wills. 249 Implied or presumptive revocations, prior to the Revised Statutes, might take place by some conveyance oif the thing devised or be- queathed, or by an alteration in the testator's circumstances, and such implied or presumptive revocations were without the statute and good in law."^ The revisers of the Revised Statutes made extensive changes in the old law relating to implied revocations which will be duly considered under subsequent sections of this act.''^ This section of the present statute'^^ does not deal with implied revocations, but with express revocations only. As will be seen from the original revisers' note to the original of this section,^* and by a comparison of the old Statute of Frauds, witli its re- enactment,"^ the Statute of Wills of 1813 "^ and the Revised Stat- utes, ^^ this section of the Decedent Estate Law makes little change in the original provisions of the old Statute of Frauds touching express revocations. The changes actually made by the Revised Statutes in the law relating to implied revocations were contained in other sections which are now merely transferred to subsequent sections of tlie present act."^ The Revised Statutes, relating to revocation, applied to wills made before they took effect, provided testator lived more dian one year."^ We will next, in order, con- sider express revocations, provided for in this section. Revocations by a Subsequent Will or Codicil. The clauses of this section, relating to written revocations, are separate from^ the clauses relating to other modes. Revocations in writing may be partial.^" As all wills are ambulatory until death, they have been regarded under all familiar systems of law as constantly revocable by later wills. ^^ At common law, a later and inconsistent will 61 Carthew, 8i ; i Eq. Cas. Abr. ^^ 29 Car. II, chap. 3, Appendix, 413, pi. is; Betts v. Jackson, 6 Fowler's Pers. Prop. Law (2d ed). Wend, at p. 176; In Matter of Nan ^^ i R. L. 365. Mickell, a negro girl, 14 Johns. 324; "2 R. S. 64, § 42; supra, p. 246. Havens, et ux. v. Van Den Burgh, 6S§§ 35_ 36, 37, 38, 39, 40, 41, De- 1 Den. 27. cedent Estate Law. 62 Havens v. Havens, i Sandf . at ^s 2 R. S. 68, 69 ; Sherry v. Lo- p. 334; 2 R. S. 64, §§ 43, 45, 46; zier, 2 Bradf. 437, 447. 2 R. S. 6s, §§ 47, 48; 2 R. S. 66, 'oLovell v. Quitman, 88 N. Y. § 52. 377, 381. 65 § 34, Decedent Estate Law. 'i Gains 2, 144; J. 2, 172; Const. '* Note 13, Appendix II, infra. 27, C. 6, 23. 250 The Decedent Estate Law. § 34 always revoked a former will witliout an express revocation .'^ The Statute of Frauds, incorporated in the first Statute of Wills of this State, simply gave expression in this respect to the existing law of England.'^ The Revised Statutes and Their Re-enactment. A written will can now be expressly revoked in writing by another will, or by a writing executed by the testator with all the formalities re- quired by the statute for the execution of a last will and testa- ment. An informal writing will not operate as a revocation.'* An express revocation by writing may now be partial, but not so when by cancellation or partial destruction.'^ Revocation under Section 39 of this Act. There is a curious exception to the universality of express revocations in writing, now stated in section 39 of this act, and one very apt to be overlooked by the decisions which treat of express revocations in writing. This comes from the revisers' attempt to make all former implied revo- cations " express revocations," for all former implied revocations are now classed as " express revocations " from the point of view of the cases cited in the preceding paragraphs ; all implied revocations being held abolished. Who May Revoke Wills. Any act of revocation under this section requires the testamentary capacity, considered under sec- tions 10 and 15 of this act,'° and if that capacity be lacking, the later will, or written declaration of revocation, is wholly inopera- '23 Wils. SI I, 512; 3 Mod. 206; craft v. Simmons, 3 id. 3S; Barry Y. B. 2, R. 3, f. 3, cited i Powell v. Brown, 2 Dem. 309; Biggs v. Devises, 517, 815. Angus, 3 id. 93; Ordish v. McDer- '^Lovelass on Wills, 344; Dan v. mott, 2 Redf. 460; Mairs v. Free- Brown, 4 Cow. 483 ; Simmons v. man, 3 id. 181 ; Matter of Miller, Simmons, 26 Barb. 68, 74; Water- 50 Misc. 70; Matter of Akers, 74 man v. Whitney, 11 N. Y. at p. 160. App. Div. 461. Cf. § 39, Decedent '* Langdon v. Aster's Executors, Estate Law ; Matter of Johnstoii, 16 N. Y. at pp. 38, 39; Matter of 69 Hun, 157, 23 N. Y. Supp. 355- Stickney, 161 id. 42 ; Burnham v. '^ Lovell v. Quitman, 88 N. Y. 377. Comfort, 108 id. 535, 540; Nelson ''^ Supra, pp. 50, 78. V. Public Adm., 2 Bradf. 210; Leay- § 34 Revocation of Wills. 251 tive as a revocation.^' A revocation procured by fraud or duress is also a nullity.''* Revocation by Other than Testamentary Instruments. When a prior will is not revoked by a testamentary instrument, such as a subsequent will or codicil, but by an independent writing declaring such revocation, it is sufficient if such independent writing be exe- cuted with the same formalities as a will.'^ A deed may contain a declaration of revocation, if it is executed according to the statute regulating wills ; the name of the instrument containing the revoca- tion is immaterial."" A written revocation may be indorsed on the will and if properly executed and published satisfies the statute. "'^ We have already alluded to a curious exception to the rule stated in this section, that testamentary instrum^ents can be revoked only by a written instrument of as high a nature as a will, i. e., exe- cuted with the same formalities; for under section 39 of this act any declaration contained in an instrument sufficient to alter an estate will suffice in connection with such alteration.*^ Will Once Revoked. A will once revoked by a formal revoca- tion remains so revoked, even though the revocation itself is re- voked and thus canceled.*^ The revocation of the revocation does not operate to revive the original will.** The same rule prevailed "Delafield v. Parish, 25 N. Y. 9, Cf. Matter of Goldsticker, 192 N. Y. 60; Smith V. Wait, 4 Barb. 28; Mat- at p. Z7- ter of Goldsticker, 123 App. Div. ^^ Matter of Goldsticker, 192 N. Y. 474, 192 N. Y. 35; Matter of Wal- 35, 37; Estate of CoUigan, S N. Y. dron, 19 Misc. 333; Matter of For- Civ. Pro. Rep. 198; Matter of Stick- man's Will, 54 Barb. 274, affg. i ney, 31 App. Div. 382, .161 N. Y. 42; Tuck. 205. Biggs V. Angus, 3 Dem. 93 ; Matter '8 Voorhis v. Voorhis, 50 Barb. of Myers, 28 Misc. 359, 361 ; 119, affd. sub. sub. nom Vorhees v. Matter of William, 34 id. 748; Mat- Vorhees, 39 N. Y. 463. ter of Brookman, 11 id. 67s; Matter 's § 34, Decedent Estate Law. of Cunnion, 135 App. Div. 864 ; 8" Matter of Backus, 49 App. Div. § 41, Decedent Estate Law. Cf. 410; Nottbeck v. Wilks, 4 Abb. Pr. Matter of Johnston, 69 Hun, 157, 31S, 320; Arthur v. Arthur, 10 Barb. evidently overruled. 9, 21. C/. § 39, Decedent Estate ^4 § 41 _ Decedent Estate Law; Law. Matter of Goldsticker, 192 N. Y. *i Biggs v. Angus, 3 Dem. 93. at p. 37. cf. Matter of Campbell, Cf. § 39, Decedent Estate Law. 35 Misc. 572. 82 See § 39, Decedent Estate Law. 252 The Decedent Estate Law. 34 before the Revised Statutes.*^ In case the subsequent testamentary revocation is lost, it seems its contents may be proved by the testi- mony of a single witness, and that the statute relating to the estab- lishment of lost wills does not apply.*° Written Testamentary Revocations. An express revocation in writing may be partial or entire.*^ Whether the revisers oif the Revised Statutes intended by this section materially to alter the former law governing express revocations may be regarded as doubt- ful. Their announced reform's related to implied revocations only.**' As before the Revised Statutes, so since then, a later and incon- sistent will, even without a clause of express revocation, operates as a pro tanto revocation of a prior will.*° And it seems that even if the inconsistent provision of the later will is inefifectual, by rea- son of some disability of the devisee or legatee to take, such pro- vision nevertheless is operative as a revocation."" A recent case presents a curious instance of a constructive revocation by a later disposition, for the bequests were not inconsistent on their face, but cumulative, and yet tihe court held the former will revoked by the later provisions."^ The mere lapse of a legacy or devise is not a revocation."^ The question of revocation by failure of a devise or legacy to vest does not arise on a proceeding to probate."^ 85 Viner's Abr., tit. Devise, R. 3, p. 141 ; 10 Bacon's Abr. 556. 88 Matter of Goldsticker, 192 N. Y. at p. 37; Estate of Colligan, s N. Y. Civ. Pro. Rep. 198; Matter of Wear, 131 App. Div. 87s; Colligan v. Mc- Kcrnan, 2 Dem. 421; sed. cf. Matter of Duke, 75 App. Div. 403; Matter of Myers, 28 Misc. 359; Matter of Williams, 34 id. 748. "Lovell v. Quitman, 88 N. Y. 377, 381. 88 See Reviser's Notes, Appendix II, infra. 89 Brant v. Wilson, 8 Cow. 56 Simmons v. Simmons, 26 Barb. 68 Viele V. Keeler, 129 N. Y. igo, 199 Campbell v. Logan, 2 Bradf. 90, 94 Canfield v. Crandall, 4 Dem. iii; Matter of Oilman, 56 Misc. 40&. Cf. Ludlum V. Otis, 15 Hun, 410; Matter of Myers, 28 Misc. 359; Simmons v. Simmons, 26 Barb. 68, 74, as to complete revocations of prior wills by later wills. ""Canfield v. Crandall, 4 Dem. III. SI Matter of Oilman, 65 Misc. 409- 82 Matter of Davis, 105 App. Div. 222. "5 Matter of Davis, loj App. Div, 221, 224, 22s; Ex parte Lindsay, 2 Bradf. 204. Cf. Matter of Essig, 63 Misc. 612; Campbell v. Logan, 2 Bradf. 90, 94. § 34 Revocation of Wills. 253 Where in a later will there is an imperative express revocation, or an unqualified clause revoking all former wills, ithe consistency •or inconsistency of the provisions of former wills with the later will containing the revocation is immaterial. The clausie of revoca- tion satisfies the statute.** Revocation by Codicil. A prior will may be partly or entirely revoked by a codicil,"'' and such revocation may .be either express, -or by reason of inconsistency, and this is recognized practice under this section of the present act.'^ Whether the revocation of a will also revokes a codicil is a more obscure question.^' But it has been held in this State tliat the revocation of a codicil revokes a will where the codicil standing alone is unintelligible without the will.'* The same reasoning would seem to apply where the will alone was revoked. A revocation of a will by a codicil may be either express and ■entire, or partial and constructive. If the provisions of a codicil are so inconsistent with the provisions of a will as to be irrecon- cilable, the codicil, as the later declaration of intention, must pre- vail and constructively repeals the earlier and inconsistent pro- vision. But ,a constructive revocation operates no further than is necessary, and an intention to alter a will in one particular nega- tives an intention to alter it in any other respect."" Revocations by Destruction or Mutilation. Having considered written revocations, we pass to the second mode of revocation, ex- pressly prescribed by the Statute of Frauds and its re-enactment in the several Statutes of Wills of this State, viz., burning, tearing, canceling, obliterating, and destruction by the testator himself. Under the old Statute of Frauds the sixtli clause relative to the destruction of devises was extended to wills of personalty by the courts. The Revised Statutes placed this construction in the stat- s' Matter of Thompson, 11 Paige, 9' Matter of Brookman, 11 Misc. 453; Nelson v. McGiffert, 3 Barb. 675, 676. Ch. 158, 164; Matter of Barnes, 70 ^^ Matter of Brookman, 11 Misc. App. Div. 523, 527; Matter of Wear, 675. 105 id. 875. Cf. Van Wert v. Bene- '^ See under § 21, supra, p. 195 ; diet, I Bradf. 114, 121. Newcomb v. Webster, 113 N. Y. 95 See a codicil defined above, pp. IQI ; Matter of Gilman, 65 Misc. 2, 47. 135- 409. 96 § 34, Decedent Estate Law. 254 The Decedent Estate -Law. § 34 ute itself, and there is now no distinction in respect o-f revocations of devises and of wills of personal property. Revocations of either are performed in the same modes. Revocation by destruction is always a matter of intention and fulfilment/ and consequently to make out an express revocation by the burning, the cancellation, or the destruction of a testa- mentary paper, the court must perceive that such acts .were done animo revocandi.'^ Anhniis revocandi, in connection with the factum of destruction may be proved as a fact, either directly,' or indirectly and circumstantially.* Evidence in some form is gen- erally admissible to show quo animo such an act was performed.'* Thus, even the declarations of the testator lare competent, if part of the res gestce, in connection with the act itself, and not prior or subsequent thereto.^ But animus revocandi without a destruction is not a revocation.' Burning. A revocation by testator's burning a testamentary paper, duly executed, must be done animo revocandi. If the burn- ing is accidental or by mistake, animus revocandi is lacking, and there is no revocation.^ Burning always contemplates a complete, and not a partial, destruction of a will: so that where this mode of destruction is employed no question ever arises of an attempt to partly revoke a testamentary instrument." But should, by any chance, a testator attempt to burn out one clause or devise or be- quest of a will, it would be ineffectual in law as a revocation.^" To make a revocation by burning effectual, the act must be actu- ally performed; mere direction is not enough.^^ ii Jarman on Wills (6th ed.), 153 ; 'Delafield v. Parish, i Redf. i; Smith V. Wait, 4 Barb. 28; Water- Matter of Curtis, 135 App. Div. 745, man v. Whitney, II N. Y. 157, 161. 747. 24 Kent Comm. 531, 532; Dan v. *i Jarman on Wills, iis (ist ed.) ; Brown, 4 Cow. 483; Sweet v. Sweet, Birkenshaw v. Gilbert, Cowp. 52; I Redf. 451, 454. I P. W. 346; Sweet v. Sweet, i 2 Waterman v. Whitney, 11 N. Y. Redf. 451, 454; Matter of De Groot, 157. 18 Civ. Pro. Rep. 102. *4 Kent Comm. 532. sSee Matter of Stickney, 31 App. 5 1 Jahman on Wills, 115; Jackson Div. 382, 161 N. Y. 42. Cf. Mat- V. Holloway, 7 Johns. 394; Jackson ter of Curtis, 135 App. Div. 743. V. Betts, 6 Cow. 377. ^o Lovell v. Quitman, 88 N. Y. 377 ; 8 Waterman v. Whitney, 11 N. Y. Matter of Curtis, 13S App. Div. 745. 157, 162; Sweet v. Sweet, i Redf. "Giles' Heirs v. Gill's Executors, 4SI, 454- Conf. Rep. 174; 10 Bacon Abr. 546. § 34 Revocation of Wills. 255 Tearing. A revocation, by the tearing of the will by testator himself, is clearly subject to the rule which requires animus revo- candi to be made out.^^' The mere fact of a tear or breach in a testamentary writing will otherwise ordinarily be presumed to be accidentals^ In England it has been held that " tearing " includes J cutting, and in the 5th edition of Jarman on Wills some nice dis- ' tinctions are drawn between the acts which do, and those which do not, constitute a revocation by tearing or cutting within their Statute of Wills.s* In this State a slight tearing, if directed to the whole will and animo revocandi, satisfies the statute; but tearing a clause only does not.^'' Where a feeble man, intending to destroy his will, tore his will in ten or twelve fragments, it was he'ld a revocation by tearing, although the fragments were susceptible of being, an'd were, put together again by another witiiout testator's consent.^® Had they 'been put together with his consent, the Eng- lisih cases hold that animus revocandi was not complete, the intention being altered before destruction actually accompHshed.^^ Cancellation. Revocation by the cancellation of a will by the tes- tator himself is another of the modes expressly contemplated by this section of the statute.^* Here again animus revocandi must be made out before a revocation by canoellation is established.^* In the determination of a revocation by cancellation, the prior cus- tody of the testamentary instrumient is important.^" If the paper is found canceled and in the exclusive custody of the maker of the will, animus revocandi will be more readily presumed from the mere fact of cancellation.^^ But if the paper is not found in the testator's exclusive custody, a mere cancellation unexplained may have no legal significance.^^ 122 Phil. Ev. 197; Bibb V. Thomas, is § 34, Decedent Estate Law. 2 Bl. 1044; Brady v. Cubit, 2 East. "Dan v. Brown, 4 Cow. 483; 534. Matter of McKernan, 129 App. 1^ Crossman v. Crossman, 95 N. Y. Div. 584. at p. IS3 ; Sweet v. Sweet, i Redf. 20 See above pp. 133, 245. 4SI, 454; i Jarman on Wills, (6th ^iQar^'g Estate, i Tuck, 445; Am. ed.), 151, IS4- Matter of Brookman, 11 Misc. 67s; " See 6th Am. ed. vol. I, p. 149. Matter of Miller, 51 id. 156. 15 Matter of Curtis, 13S App. Div. 22 Matter of Hopkins, 35 Misc. 745, 54 Barb. 274. 702, yz App. Div. 559, revd., 172 N. i« Sweet V. Sv/eet, i Redf. 45i- Y. 360; s. c, 97 App. Div. 126, 109 "Giles v. Warren, L. R. 2, P. & id. 86, appeal dismissed, 185 N. Y. D. 401 ; 3 B. & A. 489. 542- 256 The Decedent Estate Law. § 34 The term cancellation primarily means a crossing out by lines drawn through the writing.^^ Where the lines are made lightly in pencil so as to be consistent with an intention to alter the will at a future time, a cancellation is not made out within the statute, as animus revocandi can not be then inferred conclusively." But where animus revoca4idi is made out,^' a slight cancellation suf- fices,^' and ink lines drawn through the signature,"^ or pencil marks with an indorsement by testator to the effect that the will is can- celed, have been held sufficient.^^ Under the present statute, there can be no such thing as a par- tial revocation by the cancellation or other destruction of a par- ticular devise or bequest; the cancellation, in order to constitute a revocation, must go to the entire instrument.^^ The separate ele- ments of this section of the statute and of the moidifying clanises, showing that a partial revocation by destruction can not mow take place, are well considered in the important decision per curiam in Lovell v. Quitman. This decision also gives an interesting account of the modifications made in England and in this State, in the 6th and 22d sections of the original Statute of Frauds, regulating revocation of last wills and testaments.'" If animus revocandi is not established, the marks on a will, its cancellations and other alterations and substitutions, are without probative force under the present statute, .and they are treated 23 Vide sub voce " Cancellare," 377 (overruling McPherson v. Latin Thesaurus ; Matter of Alger, Clark, 3 Bradf. 92) ; Matter of 38 Misc. 143, 144; Matter of Miller, Prescott, 4 Redf. 178; Clark v. SO id. 70, 73. Smith, 34 Barb. 140; Quinn v. 24 Matter of Raisbeck, 52 Misc. Quinn, i T. & C. 437 ; Gugel v. 279. Vollmer, I Dem. 484; Dyer v. Er- 26 Waterman v. Whitney, 11 N. Y. ving, 2 id. 160. IS7, 161. 30 Lovell V. Quitman, 88 N. Y. 377, 26 Dan V. Brown, 4 Cow. 483. 380 ; and see i Jarman on Wills (4 Cf. Matter of Raisbeck, 52 Misc. ed.) 133 seq.; Matter of Curtis, 135 279. App. Div. 745. The slight but im- 27 Matter of Phelps' Will, 19 N. portant verbal changes in the Stat- Y. Supp. 13; Matter of Brookman, ute of Frauds in England and this II Misc. 67s, 676; Clark's Estate, i State, relative to revocation, fully Tuck, 445. noticed in Lovell v. Quitman, were 28 Matter of Alger, 38 Misc. 143. overlooked in Simmons v. Simmons, Cf. Matter of Raisbeck, 52 id. 279. 26 Barb. 68, 74. 29 Lovell V. Quitman, 88 N. Y. § 34 Revocation of Wills. 257 as merely inchoate, or as evidence of some intention to alter the will in a legal way at some future day. Such a will is probated in so far as it complies with the statute, and no farther. Conse- quently, the alterations contemplated are to be ignored.^^ There is ordinarily no presumption, in the absence of fraudulent or sus- picious circumstances, that an interlineation or other verbal change was made after the execution of a will. On the contrary, the presumption is the other way.'^ Obliteration. The sixth section of the original Statute of Frauds,^' regulating the express revocation of .devises, makes ob- literation one mode of revocation. The acts " to redtice the laws concerning wills into one statute," passed in 1787, i8oi and 1813, as well as the Revised Statutes and this section of our present " Wills Act," all specify obliteration as one mode of express revocation of testamentary instruments.^* Obliteration is there specified as a mode of revocation, obviously dififering in some de- gree from a destruction by burning or cancellation, and yet the significance of oblitero in Latin, from which obHteration is derived, is a " cancellation " as well as a " blotting out." Doubtless all these words of the statute {burnt, torn, canceled, etc.) are ejusdem generis and mere variations of the larger and more com- prehensive term " destruction." Obliteration, as contrasted with cancellation, was intended to signify the physical expunging, or the blotting out or eflfacement, of the text of the testament; whereas cancellation signified primarily a crossing out of the text.'' Thus, taking out the text of the will by an acid,'* or by pasting a blank paper over the text, is doubtless an obliteration'^ within the mean- '1 Gugel V. Volmer, i Detn. 484 ; '' 29 Car. II, chap. 3, amended 9 Matter of Ackerman, 129 App. Div. Car. II, chaps. 26, 36; Lovell v. 584, and cases cited; Matter of Quitman, 88 N. Y. at p. 380. Johnson, 60 Misc. 277 ; Matter of '* i J. & V. 278 ; i Gr. 386 ; i K. Kissam, 59 id. 307; Matter of & R. 178; i R. L. 364; 2 R. S. 64, Akers, 74 App. Div. 461, affd., 173 § 42; § 34, Decedent Estate Law. N. Y. 620; Matter of Curtis, 13s ^^Vid., Cancello, Latin Thesau- App. Div. 747. rus; Matter of Alger, 38 Misc. 143, 22 Crossman v. Crossman, 95 N. 144; Matter of Miller, 50 id. 70, 73. Y. 14s ; Matter of Conway, 124 id. ^* Schouler on Wills, § 384. at p. 466; Matter of Gibson, 128 id. "Re Hosford, L. R. 3 P. & D. 769, 771. 211. 17 258 The Decedent Estate Law. § 34 ing of the statute, if done animo revocandi. But no partial revoca- tion, whether by obliteration, cancellation, or other mode of de- struction, is now possible in this State. ^^ Destruction. The Revised Statutes first inserted the word " de- stroyed '' in the section of the Wills Act governing express revo- cations.^" Seven years later, the new English Wills Act (§ 20, i Vict., chap. 26) employed the same term for a like purpose, how- ever, omitting cancellation and obliteration as too vague or loose methods of revocation. The words " otherwise destroying " in the English act have since received much judicial consideration.*" In section 34 of the Decedent Estate Law, the word " destroyed " is doubtless cumulative, and it is to be taken to mean a destruction ejiisdem generis as those mentioned before, but one possibly more complete in kind." *'^ A human destruction of a will, in any way soever, must in order to constitute a revocation, be done animo revocandi, or else it is a nullity, and the will may be otherwise established.*^ Revocation of Conjoint or Mutual Wills. We have seen that conjoint or mutual wills are valid.*^ Conjoint or mutual wills may be revoked by the parties thereto, but only in the manner provided for by the statute.** It is not the law of this State that such revo- cation requires consent of all the conjoints.*' Revocation of Wills Executed in Duplicate or Parts. Where a will is executed in duplicate or triplicate, it is not necessary that both or all parts be probated. Btit both or all should be produced, for a revocation of one part is a revocation of all.** 5'Gugel v. Vollmer, i Dem. 484; ^^ Supra, p. 136. Lovell V. Quitman, 88 N. Y. 37";; "Ex parte Day, I Bradf. 476; Matter of Prescott, 4 Redf. 178; Edson v. Parsons, 85 Hun, 263; Quinn v. Quinn, i T. & C. 437. Matter of Goldsticker, 123 App. 39 See p. 246, supra; 2 R. S. 64, Div. 474, affd., 192 N. Y. 35. § 42. «Id. supra; Matter of Keep, 2 ^See I Jarraan on Wills (6th Am. N. Y. Supp. 750, 17 St. Rep. 811. ed.) 150. <^ Grossman v. Grossman, 95 N. "Matter of Hughes, 61 Misc. at Y. 145; Asinari v. Bangs, 3 Dem. p. 210. 385. 42 Matter of De Groot, 18 Civ. Pro. Rep. 102. 9 N. Y. Supp. 471; Matter of Hughes, 61 Misc. 207. § 34 Revocation of Wills. 259 Revocation Through Destruction by Another Than Testator. Whenever a will is burnt, torn, canceled, obliterated or destroyed by another than testator himself, it must be so done in his pres- ence. Such fact, and the direction and consent of testator, must be proved by at least two witnesses.*' Otherwise the destruction is wholly inefifectual as a revocation.*® Presumptions Concerning Destruction. Proof that a will was duly executed and was in existence a short time before testator's death does not, where the will can not be found after such death, raise a presumption that it continued in existence, or was fraudu- lently destroyed in the testator's lifetime. Proof that the will was not found after testator's death is presumptive evidence, suf- ficient to establish prima facie that the testator himself destroyed it animo revocandi; and he who seeks to establish the will as lost or fraudulently destroyed assumes the burden of overcoming this presumption by adequate proof.*° The presumption indicated may be rebutted. Thus where a will has been lost or destroyed, under circumstances showing that it has not been lost or destroyed with the knowledge or consent of the testator, the fact of its ex- istence at the death of testator may be proved by circumstantial evidence.^" There is a great difference in procedure on a will which is wholly lost or destroyed, and on a will where the attempted revocation is a nuUity.°^ A Lost or Destroyed Will. Where a will has been duly exe- cuted, and has afterward been lost or destroyed by accident or design before probate and record within this State, any person *' § 34, Decedent Estate Law ; 387. Cf. Jackson v. Betts, 9 Cow. Matter of Hughes, 61 Misc. 207. 208, 6 Wend. 173. ^8 Matter of De Groot, 18 Civ. ^idley v. Bowen, 11 Wend. 227; Pro. Rep. 102; Matter of Evans, 113 Schultz v. Schultz, 35 N. Y. 653. App. Div. 373; Matter of Hughes, ^iBuijjiey y. Bemond, 2 Bradf. 61 Misc. 207. 281; § 2621, Code Civ. Pro.; Gugel ^'Collyer v. Collyer, no N. Y. v. Vollmer, i Dem. 484; Matter of 481; Matter of Kennedy, 167 id. Hughes, 61 Misc. p. 209; Matter of 163; Buckley v. Redmond, 2 Bradf. De Groot, 18 Civ. Pro. Rep. 102. 281 ; Matter of Nichols, 40 Hun, 26o The Decedent Estate Law. 34 interested in the establishment thereof may have his action in the Supreme Court to establish such will."^ But the plaintiff is not entitled to such judgmient unless the will was in existence at tes- tator's death or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.^^ A Revoked Will May be Republished. A revoked will may be republished,^* but if duly revoked may be republished only pro- vided all the formalities required for an original execution of a will are complied with.°^ Interesting questions often arise on a republication of a will, whether such republication be express or by virtue of some codicil. But a republication will not revive a satisfied legacy.'" ( All Implied or Constructive Revocations Abrogated. This sec- tion on its face extends only to express revocations. But it is broad enough in terms to abolish all presumptive or implied revo- cations, other than those expressly excepted by this chapter. The accuracy of this conclusion, however, depends on the construction given to the words " hereinafter mentioned." If these words are limited to the instances mentioned in this section, all implied revo- cations of prior wills are not abolished by statute. If, on the other hand, such words extend to the chapter, all implied revoca- tions of wills, except those specially stated in the chapter, are abro- gated. And such is the construction generally accorded.^' 52 § 1861, Code Civ. Pro.; Matter Cf. In re Johnston, 69 Hun, 157, 52 of Reiffeld, 36 Misc. 472. St. Rep. 533; Matter of Trost, 38 55 § 1865, Code Civ. Pro. Misc. 404. 5* Matter of Knapp, 51 St. Rep. ^eL^ngdon v. Astors' Executors, S17, s. c, 23 N. Y. Supp. 282; § 41, 16 N. Y. 9, 57. Decedent Estate Law, and see Note sTLangdon v. Astors' Executors, 19, Appendix II, infra. 16 N. Y. g, 39; Delafield v. Parish, BS § 41, Decedent Estate Law ; 25 id. 9, 99 ; Matter of Davis, lOS Matter of Stickney, 161 N. Y. 42; App. Div. 221, 228, affd., 182 N. Y. In re Forbes, 24 N. Y. Supp. 841. 468. § 35 Revocation of Wills. 261 § 35. Revocation by marriage and birth of issue. If after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his lifieitime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be pro- vided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation, shall be received. Formerly 2 R. S. 64, § 43: § 43. If after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his life-time or after his death, and the wife or issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision ; and no other evidence to rebut the presumption of such revocation, shall be received.^'?* Comment. The preceding section of this act relates to express revocations. Tliis section is the first of a series of sections of the statute dealing with the fomier law of implied revocations of wills, as that law stood prior to the Revised Statutes. The revis- ers of the Revised Statutes intended to reform the entire law of implied revocations of wills, as they regarded it as wholly unsat- isfactory."' They consequently gave much attention, as appears by their notes, to the sections of the statute regulating revocations of wills. The present statute merely re-enacts the Revised Statutes and now regulates revocation of testamentary instruiments, the former doctrines of presumptive or implied revocation having 6'a Repealed § 130, Decedent Es- ^' See their notes IS, 18, Appen- tate Law. dix II, infra. 262 The Decedent Estate Law. § 35 been fully considered and codified in the Revised Statutes or else swept away."® The Old Law. The Statute of Frauds and its re-enactment m this State in the oM Statute of Wills had not taken away revoca- tions of wills by what were termed " acts in law," *'" and an altera- tion in testator's circumstances, such as his subsequent marriage and birth of issue, was a presumptive revocation of a will, dispos- ing of the whole estate, made in a state of celibacy.**^ Unless the will disposed of the whole estate. Lord Mansfield said that in his recollection there was no case in which marriage and birth of a child were held to raise an implied revocation.^^ This rule stated above, concerning revocation by marriage and issue, was first applied to wills of personalty, but was soon fol- lowed in respect of devises."-' But where the will was in favor of children of a first marriage, a second marriage and birth of issue revoked the will as to personalty, but not as to realty, for that would have been to let in the heir to the whole estate."* Where the wife and children were otherwise provided for, either by the will itself or by a marriage settlement, or whfere the will did not dispose of the whole estate, subsequent marriage anid birth of issue were not a presumptive revocation."' Nor was marriage alone, or a subsequent birth of issue, sufficient to cause a pre- sumption of revocation to arise. Both facts must concur."' Whether subsequent birth of issue by first venter, followed by a second marriage without issue, came within the rule was doubtful. 69 § 34, Decedent Estate Law ; "^ Brady v. Cubitt, Doug. 39. Langdon v. Astor's Executors, 3 ^' i Powell on Devises, S3o; Duer, 477, 558, 16 N. Y. g, 39; Dela- Lovelass on Wills, 365. field V. Parish, 25 N/Y. 9, 99; Mat- 6*Halloway v. Clarke, i Phill. ter of Davis, 105 App. Div. 221, 228, 339; Sheath v. York, i Ves. & Bea. affd., 182 N. Y. 468. 390. 6" Lovelasa on Wills (ed. of 1839) "^ Havens et ux. v. Van Den 351 ; Dan v. Brown, 2 Cow. 488, Burgh, i Den. 27. brief of counsel; Brush v. Wilkins, "^ i Powell on Devises, S44; 4 Johns. Ch. 506, S09- Lovelass on Wills, 366. Cf. 4 81 Lovelass on Wills, 351 ; Brush Kent Comm. 524. V. Wilkins, 4 Johns. Ch. 506; Hav- ens et ux. V. Van Den Burgh, i Den. 27. § 35 Revocation of Wills. 263 So there was much uncertainty whether parol evidence of testator's intention could be received."^ Whether the rule indicated was grounded upon ,a presumed alteration of intention, as it has been frequently laid down, or upon a tacit condition annexed to the will itself, thait it is not to operate in such a change of circumstances, as maintained by Lord Keyon in Doe v. Lancashire,''* was undecided. It was held, after some fluctuation of opinion, that if the child or children whose birth had revoked, or contributed to revoke, the will died in the lifetime of the testator this event would not restore efficacy to the revoked will."" Yet the absurdity of declaring a will revoked by subsequent marriage and birth of issue, when wife and issue die without other issue before testator is a.ppareat, if we reme:mber that originally such marriage and subsequent issue were only a constructive or presumptive revocation. The Revised Statutes. Such were some of the inconsistencies and uncertainties in the state of the law governing constructive or implied revocations by subsequent marriage and birth of issue when the revisers came to frame this section of the Revised Stat- utes.'^" The revisers say in their note " that there has been much litigation, and there still is much uncertainty in regard to some of the qualifications of the rule." '^ These uncertainties and incon- sistencies we have alluded to above under this section.'- The stat- ute required (i) the wife or issue to survive the husband, in order that subsequent marriage and birth oi issue should operate as a revocation. (2) It required, as formerly, that the issue should be unprovided for by any settlement, or in the will itself. (3) It regulated the evidence of intention to revoke the prior will.'^^ «' See Lovelass on Wills, pp. 365, 343 ; Emerson v. Bovil, i id. 342 ; 366; 4 Kent Comm. 521-524; Hav- Walton v. Walton, 7 Johns. Ch. 258. ens et ux. v. Van Den Burgh, i Den. '°2 R. S. 64, § 43, now § 35, De- 27. cedent Estate Law. «s 5 T. R. 49 ; see also W. Jar- '^ See Revisers' Note 14, Appendix man's very valuable note to 1 Pow- II, infra. ell on Devises, 531. ''^ Supra, p. 262. «9i Jarman on Wills, 112 (ist '^2 R. S. 64, § 43, now § 35, De- ed.), citing Burrow v. Baxter, Arab. cedent Estate Law; Matter of Ros- 490; Hellyer v. Hellyer, cit. i Phill. signot, 50 Misc. 231. 412; Sullivan v. Sullivan, cit. i id. 264 The Decedent Estate Law. § 35 The statute settled the law as to the reception of oral evidence to rebut the implied revocation. Now, as formerly, if the issue so subsequently born are provided for by some settlement, or are mentioned in some prospective provision of the will itself, a sub- sequent marriage and birth of issue and their survival of the father does not operate as a revocation of the father's prior will.''* But no other evidence to rebut the conclusive presumption of a revo- cation of a prior will by a subsequent marriage and birth of issue is now allowed.'^' The section applies only to marriage of the father, but it applies to subsequent marriages of widowers as well as of bachelors.'^* Both a subsequent marriage and subsequent birth of surviving issue must concur in order to make this section available to such issue. If the marriage is before the making of the will and the birth of issue subsequent thereto, this section has no application. The case then falls within the purview of section 26 of this act.^^ The rule stated in this section applies even where the marriage and birth of issue follow a long meretricious relation.'* '* See the authorities cited under ''' § 26, Decedent Estate Law, § 26, Decedent Estate Law, pp. 216- Matter of Gall, 5 Den. 374, 31 St. 221, supra; as they are equally rele- Rep. 954, 9 N. Y. Supp. 466; aflfd., vant to this section, and Matter of 10 N. Y. Supp. 661, s. C, 32 St. Lally, 136 App. Div. 781. Rep. 695. '' § 35. Decedent Estate Law, '* Matter of Gall, id. supra; Mat- Adams V. Winne, 7 Paige, 97 ; Mat- ter of Del Genovese, id. supra. ter of Rossignot, 50 Misc. 231. '8 Havens v. Van Den Burgh, i Den. 27. § 36 Revocation of Wills. 265 § 36. Will of unmarried woman. A will executed by an un- married woman, shall be deemed revoked by her subsequent marriage. Formerly 2 R. S. 64, § 44: § 44. A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage." Common Law. At the common law, marriage of a woman re- voked her prior will, for it was essential to a will, that it should be ambulatory during the life of the testatrix; but as by marriage she disabled herself from making any other will, the instrument ceased to be of that sort, and was therefore void.'" This rule of law was manifestly proper, as otherwise the will, being irrevocable, would have operated in every case as an ante-nuptial settlement of the wife's separate estate, and it would have been in fraud of the husband if he were not ibenefited by it. It is, however, doubtful whether this was the only reason o'f the common-law rule on this point. The doctrine of implied revocations was independent of the power to revoke. ^^ It was nevertheless, by the common law, well settled, that a subsequent marriage ipso facto revoked a woman's prior will.^^ If the woman survived her husband, the will revoked by her mar- riage did not revive on his death, but continued revoked.*^ A case in Plowden, cited by Mr. Powell, in his Treatise on Devises, held just the other way about,** but the common law was finally settled as stated by Lovelass in his admirable work on wills.'' Plain as the common-law rules seemed, in the instance of tihe prior will of a married woman, the conimon law regarding con» "Repealed, § 130, Decedent Es- 83 Hodsden v. Lloyd, 2 B. C. C. tate Law. 534- 80 Lovelass on Wills (ed. of 1839), 84 1 Powell on Devises, 545, 367, citing 4 Rep. 606; Cotter v. citing Plowd. 343. Layer, 2 P. Wms. 624; Hodsden 86 Lovelass on Wills (ed. of V. Lloyd, 2 B. C. C. 534; Brown v. 1839), 367, citing Mr. Lewis' case, Qark, 77 N. Y. at p. 373- 4 Burn's Ecc. Law, 51 ; Doe v. 81 1 Powell on Devises, S47- Staple, 2 T. R. 695 ; Brown v. Clarki 82 Lovelass on Wills, 367. 77 N. Y. at p. 373- 266 The Decedent Estate Law. § 36 structive or implied revocations literally bristled with difficulties; such as, whether testator's oral declarations modified the presump- tion, or whether the situation of the estate, settlements, etc., con- trolled animus revocandi. All these and like difficulties, the revisers intended to brush away forever.*^ But whether they actually pro- vided for every case may, as we shall see below, be a question. Revised Statutes. It will be perceived that the revisers of the Revised Statutes proposed to restate only the common law in this section of the statute, viz. : (i) That marriage of a female revoked her prior will ; (2) that death of her husband operated to revive it, or at least removed the suspension on its operaition.^' But the lat- ter part of the proposed section the legislature rejected, leaving standing the provisiion that her subsequent marriage revoked the prior will of an unmarried female.*'^ Construction of this Section. The expression of the statute tiiat " a will * * * shall be deemed revoked by her subsequent mar- riage " is now positive in respect of wills of females, and the statu- tory presumption of a revocation from the fact of her subsequent marriage is irrebuttable, and it can not now be explained away.*° Even a provision in tihe prior will for the future husband idoes not rebut the statutory presumption.^" At the time the Revised Statutes took efifect, the common-law disabilities of married women and the husband's rights over her property, jure uxoris, were in full force. The subsequent " Married Women's Acts " enabling a woman to deal with her separate prop- erty after coverture as if a feme sole, and giving her an entirely new and individual legal and statutory status on her marriage, had not yet been passed. The separate courts of law and equity, so familiar to English-speaking peoples of the eighteenth and early nineteenth centuries, were in full force. Only after the very revo- lutionary Constitution of this State, adopted in 1846, began the modern legislation fixing anew the status of the spouses on mar- ss See Revisers' Notes 8, 14, 15, 89Lathrop v. Dunlop, 4 Hun, 213, Appendix II, infra. affd., 63 N. Y. 610; Brown v. Clark, 8' I Powell on Devises, 545. 77 id. at p. 373. 88 See Judge Edmonds' note and ^^ Matter of Mann, Si Misc. 315. Note IS of the revisers. Appendix II, infra. § 3^ Revocation of Wills. 267 riage. The old-school common lawyers generally disapproved of such reforms, and prophesied ill of the reconstruction of the family relations on theories, vsrhich were sure to be destructive of its unity, or lead to its utter disruption. One of the first questions which arose after the Married Women's Acts of 1848, 1849 and i860 was, whether these enabling acts impliedly or constructively repealed this section of the Revised Statutes? It was held that .they did not-^i Nor had this section any effect on the integrity and efficacy of an ante-nuptial marriage settlement of the wife's esitate, although it was clothed with all the consequences of a will in disposing of such property after her decease.'^ Widows and Divorced Women. This section applies to a re- marriage of a widow whose will was made during widowhood, and her subsequent marriage operates as a revocation."^ The section probably applies also to the remarriage of a woman divorced a vinculo, where the will was made after divorce, and even though such remarriage may be to her former divorced husband."* A divorced woman who marries again, by her remarriage takes on the new status referred to in this section, which ipso facto is a revo- cation of her prior will if made after her divorce.°f A curious case may yet arise, when a woman during her first marriage makes her will, and is thereafter divorced and subsequently remarried to the same person whom she divorced. Does such former will stand under this section, or is it absolutely revoked by such remarriage ?"* Modern conditions tend to make this hypothetical case one not remote from probability. There is much room for argument on such a case, although the Court of Appeals has decided that this M Loomis V. Loomis, 51 Barb. 257 ; 620, afifg. 61 Hun, 331 ; Croner v. Lathrop v. Dunlop, 4 Hun, 213, affd., Cowdrey, 139 N. Y. at p. 476. 63 N. Y. 610; Brown v. Clark, 77 s* See Matter of Burton's Will, 4 N. Y. 369, affg. 16 Hun, SS9, which Misc. 512; Langston v. Asters' Ex- reversed Procter v. Clarke, 3 Redf. ecutors, 16 N. Y. at p. 39. 445. 85 Brown v. Clark, 77 id. at p. 373. 82 McMahon v. Allen, 4 E. D. '^ See note on meaning of the Smith, S19. 552. Cf. Lathrop v. words " unmarried woman " and Dunlop, 4 Hun, 213, affd., 63 N. Y. " without having been married," 15 610. Law R. Am. 292. 93 Kaufman v. Dillon, 131 N. Y. 268 The Decedent Estate Law. § 36 section excludes a revocation by a second marriage, where the prior will was made during a prior and differeat coverture.'' Such decision would appear in its reasoning to embrace the bypolihetical case of a divorced woman, last put. Yet it is not an express adju- dication, and where a final decision is not express there is an abso- lute right to review the implications. There were some points apparently not considered in the opinion in the case of McLamey. In the case supposed, of a divorced woman who remarries her former husband, her will, though made during the prior marriage, and by a woman who can not be described in law as then " unmar- ried," is certainly amibulatory, and as such will is tacitly carried on into the unmarried state after the divorce, it necessarily then becomes the will of an " unmarried woman." The date of a will is nothing, or inconsequential, as the will takes its legal effect only on the death of the testatrix."* Having thus become, as just stated above, the will of an unmarried woman on her divorce, is it then to be regarded as revoked by her subsequent remarriage to the same man? It miay be urged that the identity of the spouses on the second marriage is a mere accident, and that the question of revocation remains unaffected by such identity. The Court of Appeals has held also, that the will of a married woman made during her prior marriage to another man is not re- voked by this section, and the court would probably extend the decision to the case last supposed."" The court did not, however, appear to notice in the McLamey case tiie important question, whether the Revised Statutes had not omitted to provide for the case of the remarriage of a divorced woman or whether in con- sequence the common law, relative to implied revocations of wills by subsequent marriage of females, did not still prevail in such a case under the constitutional reservation of the common law. s' Matter of McLamey, 153 N. Y. Misc. 512, where the opinion was 416. based on the mistaken statement 88 It has been often held, that the that but for the statute, the will of omission of a date to a will is ot a feme sole would not be revoked no legal consequence. by her subsequent marriage, whereas 99 Matter of McLamey, 153 N. Y. the common law was just the other 416, affg. 90 Hun, 361, which fol- way. See Lovelass on Wills, 367. lowed Matter of Burton's Will, 4 § 36 Revocation of Wills. 269 The express abrogation of all implied or constructive revocations by the Revised Statutes turns on a very narrow point, alluded to under section 34, Decedent Estate Law. They may have done so or not. The authorities generally affirm that they did, but after no particular presentation of the very point.^ The opinions on this point seem to have been deHvered in arguendo, rather than as de- cisions of the legal question. It is doubtless clear that the revisers of the Revised Statutes intended to abrogate all implied revocations of wills, and the courts have so held.^ But the question is, have the revisers done so? If not, then does not the common law in such a case still control? It would seem that an affirmative would not be an improper answer to the latter question, for the common law, adopted by the Con- stitution, was intended to control in every case not affected by statute. To be sure, it is the more modern fashion to decide that the common law controls only provisionally and when suitable.' Yet the legal presumption is, that the common law always controls,* and the cases of Farker v. Foote' and Myers v. GemmeP fumish a notable example of the rejection of the common law as unsuitable. In Myers v. Gemmel, the court finally rejected the common-law doctrine of " ancient lights " as unsuitable to this country, where light was then so abundant and houses so few. The court did not consider that they were, iby their rejection, in effect, abrogating that great legal doctrine, " Sic utere tuo ut alicnum non Icedas." Had Myers v. Gemmel been decided the other way, the condition, both economic and sanitary, of modern cities in America'' would have been much less faulty than it is ; so dangerous is it to depart lightly from the accumulated experience of a thousand years of 1 P. 252, supra . Cf. Havens v. * Canal Commrs. v. The People, 5 Havens, i Sandf. Ch. at p. 334; Wend, at p. 446; Paige v. Schenec- Langdon v. Astor's Executors, 16 tady Railway Co., 178 N. Y. 102, no; N. Y. at pp. 38, 39. Mott V. Eno, 97 App. Div. at pp. 2 See Revisers' Notes 15, 18, Ap- 584, 586. pendix II, infra, and p. 260, supra. ^ 19 Wend. 309. ^ This phrase originally meant, « 10 Barb. 537. "suitable to new political condi- 'Myers v. Gemmel was very tions," but has been stretched so broadly followed in America, as to apply to " existing conditions." 270 The Decedent Estate Law. § 36 civilization, as it is plainly expressed in the common law of English- speaking peoples. We have alluded to the danger of rejecting well settled rules of the common law, because there may still be solitary instances of impilied revocations of wills which can only await the attemtion of some "future legislature for relief. It was distinctly the rule of the common law, that a subsequent marriage of any single woman, widow, or maid was an implied revocation of her former will.^ This rule was but just to the future husband. Its express rejection in this State can not be pointed out, in any provision of the Revised Statutes, in the case of divorced women who remarry. The mere fact that by recent legislation the wife may now after coverture make a will which shall exclude the husband is not germane, or, if so, certainly not decisive of the question of implied revocation, by subsequent mar- riage, of a divorced woman's will, made during a former marriage.* But the courts have held otherwise.^" Will Revoked Declared Void, When. It has been held that a will, revoked by the subsequent remarriage of a testatrix, may be so declared on a final accounting of an administrator.^^ But a de- vise so revoked may be declared null in any proper proceeding affecting title.^^ A will of a nonresident female, who intermarries in this State and is domiciled in this State at the time of her death, is revoked by her marriage, as the law of this State is controlling.^' ' Lovelass on Wills, 367 ; Lang- ^^ See cases cited above, don V. Astor's Executors, 16 N. Y. " Davis' Estate, i Tuck. 107. at p. 39- 12 § 1866, Code Civ. Pro. 9 The revisers admitted, that they "Matter of Coburn, 9 Misc. 437. might not have provided for all cases. See their note 18, Appendix n, infra. § 37 Revocation of Wills. 271 § 37. Bond or agreement to convey property devised or bequeathed not a revocation. A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them. Formerly 2 R. S. 64, § 45 : § 45. A bond, agreement, or covenant, made for a valuable consideration, by a testator, to convey any property devised or bequeathed In any will previously made, shall not be deemed a revocation of such previous devise or bequest, either at law? or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.i* Common Law. Before this section was enacted in the Revised Statutes, an agreement by the devisor to convey, or a contract by devisor for the sale of real property previously devised (as it amounted in equity to a conveyance and converted the devisee into a trustee for the purchaser^'), provided such contract remained binding at testator's death, wais as much an implied revocation of the devise as an actual conveyance would have been.^* If such contract remainded subsisting at the testator's death, even if it were afterward set aside by a court of law,^' or even if it was 1* Repealed, § 130, Decedent Es- 332; Cotter v. Layer, id. 623; Wal- tate Law. ton v. Walton, 7 Johns. Ch. at pp. IB This is still the law as to title 268, 269. in equity, Lowell v. Underbill, 127 " Bennett v. Earl of Tankerville, App. Div. 92. 19 Yes. 170. "Rider v. Wager, 2 P. Wms. 272 The Decedent Estate Law. § 37 on proper grounds abandoned by the purchaser,^' it was never- theless a revocation. A will once revoked by implication could not 'be restored without republication.^' In short, before the Revised Statutes, any alteration in the cir- cumstances of the testator raised a presumption of revocation. With respect to devises of real estate, the general principle was that at the time of his death the devisor must be in a position to exercise a right to dispose of the devised property, and the least alteration after the will in the thing devised, if by the devisor, made it a different estate, and consequently raised an implication of a revocation of the devise.^" The same or like principles applied gen- erally in respect of bequests of personalty .^^ The exceptions and distinctions in this rule were, however, both numerous and slight, giving rise to litigations and questions of great refinement. In fact, the ocanimon law of implied revocation of wills was most un- satisfactory to the revisers of the Revised Statutes, who regarded the decisions as tantamount to a repeal of the Statute of Wills, which had intended to confer a full and unrestricted right to devise.^^ The sections of the Revised Statutes, relative to acts of the tes- tator which do and do not constitute a revocation of wills and testa- ments, were given most careful consideration by the revisers of the Revised Statutes, and their notes on the reported sections fur- nish a careful commentary on the pre-existing cOimmon law of implied revocations of wills. So important are these " notes " to any understanding of the sections of the Revised Statutes relative to revocation of wills that they are cited extensively in the subse- quent decisions bearing on this subject. As a preliminary to the exposition of such sections, such notes have become and are in- dispensable.-' 18 Tebbott V. Voules, 6 Sim. 40. 22 gee Notes of Revisers, Nos. IS. 19 Walton V. Walton, 7 Johns. Ch. 18, Appendix 11, infra. 258. 23 See notes of revisers, 14, IS, 16, ^oLovelass on Wills, 351, 352; i 17 and 18, Appendix II, infra. Powell on Devises, 547. 2iLovelass on Wills, 362; Walton V. Walton, 7 Johns. Ch. 258. § 37 Revocation of Wills. 273 Construction of this Section. The Revised Statutes completely changed the former rule, that a mere contract to convey was always such an alteration of a devisor's circumstjince as to constitute an implied revocation of the devise.-* The revisers believed that the wisdom of such change in the law was so apparent as to need no comiment on their part.^^ But at this point the note of the revisers was too condensed, and it is not always apparent, precisely how far this particular section is to be taken literally. Certainly the implication of a revocation of a devise, by a testator's mere con- tract to sell the land devised, was not absolutely conclusive of an intention to revoke a devise or bequest, especially where the devisee or legatee was a natural object of the testator's bounty and other- wise unprovided for. But that the old rule was without good reason is not so apparent as the revisers seemed to infer. How- ever, this section of the statute is now controlling in such a case, and a testator's executory contract to convey the thing which he bad previously devised by his will, is not now, in all cases, an implied or presumptive revocation, and the executory contract of sale may in some cases stand for the thing devised and pass with all its incidents to the devisees.^" In what manner an executory contract of the deceased to sell the land previously devised by his will is to be performed or en- forced, is often an interesting question, but one not necessarily involving the rights of the devisees of the land under thissection,^^ and it need not therefore be here considered. Concerning a testator's right to contract to sell property wihich he had devised in a prior will, there has not been and never could be any question. A will is ambulatory until death of testator, and its mere execution can not deprive a testator of the incidental 24 Knight V. Weatherwax, 7 Paige, Sed. cf. Walker v. Steers, 14 N. Y. 182; Langdon v. Astor's Executors, Supp. 398. 16 N. Y. at p. 39. " Roome v. Phillips, 24 N. Y. 463 ; 25 Revisers' Note 16, Appendix II, again 27 id. 357, 364; Holly v. infra. Hirsch, 135 id. 590, revg. 63 Hun, 26 Knight V. Weatherwax, 7 Paige, 241 ; Guelich v. Clark, 3 T. & C. 182. Cf. Beck V. McGillis, 9 Barb. 317. 35; Brown v. Brown, 16 id. 569. 18 274 The Decedent Estate Law. § 37 power of disposition over bis property as long as his life lasts.^' This section of the statute simply exchanges the old common law presumption of complete revocation, arising on an executory con- tract of sale, to a presumption of an intention to devise the thing sold, subject to the contract or bond.^" The section is really one addressed to a former rule of evidence. This section of the statute now provides, that a bond, contract or covenarit, made for a valuable consideration, to convey the property devised or bequeathed, sliall not any longer be taken to be a revocation of a prior will devising or bequeathing such, prop- erty.'"' The section is addressed, as just stated, to a change in the former law on the same subject.^^ As also stated before, all these sections on revocation relate to old presumptions de jure. But this section relates only to sales which are in fieri, and when such scales are once consummated in the lifetimes of the testator, the presump- tion of revocation of a prior will is still the other way.^- Executory Contract. That an executory contract of sale is never in itself any longer a revocation of a prior devise or bequest is not, however, apparent from the decisions. '^ This section is to be read in connection with the others in pari materia and .particu- larly with sections 39 and 40 of this act.^^ Whenever the title to a thing devised or bequeathed ceases in all degrees as to the tes- tator, it would still seem that his contract of sale worked a revoca- tion of his prior devise or bequest.^' 28 Middleworth v. Ordway, 191 N. Barb. 5°. affd., 34 N. Y. 201 ; Beck Y. 404, 411. V. McGillis, 9 Barb. 35; Walker v. 29 See Roome v. Phillips, 27 N. Y. Steers, 14 N. Y. Supp. 398. at p. 364 ; Vandemark v. Vande- ^^ Walker v. Steers, 38 St. Rep. mark, 26 Barb. 416. 654, 14 N. Y. Supp. 398; Sewell v. 30 Knight V. Weatherwax, 7 Paige, Underbill, 127 App. Div. 92. 182 ; Langdon v. Astor's Executors, ^^ See §§ 39, 40, Decedent Estate 16 N. Y. at p. 39. Law. 31 Supra, p. 273. 'B See the admirable opinion of 32 §§ 39, 40, Decedent Estate Law ; Harris, J. in Beck v. McGillies, 9 McNaughton v. McNaughton, 41 Barb. 35. § 38 Revocation of Wills. 275 § 38. Charge or incumbrance not a revocation. A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the perform- ance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance. Formerly 2 R. S. 64, § 46: § 46. A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein con- tained, shall pass and take effect, subject to such charge or incumbrance.'^ Law before the Revised Statutes. As stated by the revisers in their note to this section of the Revised Statutes, in equity a mort- gage or charge on lands was only a revocation of a prior will pro tanto, as in equity the mortgagor still represented the beneficial interest. But at law, a mortgage was a revocation of a prior de- vise.^' The revisers intended to make the rules on this point uni- form in all the courts,^* so they adopted, as they always did in like cases, the equity rule as the more advanced and liberal rule for all cases. Present Law. At the present time, as stated above, the formier rule in equity was by the revisers made the rule at law, and a mort- gage or charge after a devise or bequest is no k>nger a revocation of a prior will, either at law or in equity.^^ The rules at law and in equity are now uniform. It is difficult to see that this section of the statute accomplishes more than the revisers intended. When the mortgage or charge is foreclosed, or the property devised is sold, or its nature so com- 28 Repealed, § 130, Decedent Estate '' Langdon v. Astor's Executors, Law. 16 N. Y. at p. 39; Vandemark v. s'Lovelass on Wills, 355; i Pow- Vandemark, 26 Barb. 416, 418. ell on De^vises, 55S- 58 See Revisers' Note 17, Appen- dix 11, infra. 276 The Decedent Estate Law. § 38 pletely changed as to be inconsistent with a devise in specie, it must be apparent that this section has no application to a question of revocation of a prior will by a mere mortgage or a charge. The solution of the question of revocation in such cases then depends on other sections of the statute.*" "See §§ 39, 40, Decedent Estate v. McNaughton, 41 id. 50, affd., 34 Law ; Adams v. Winne, 7 Paige, 97 ; N. Y. 201 ; Philson v. Moore, 23 Beck V. McGillis, 9 Barb. 35 ; Brown Hun, 152, and see text under next V. Brown, 16 id. 569; McNaughton, two sections of this act. § 39 Revocation of Wills. 277 § 39. Conveyance, when not to be deemed a revocation. A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously de- vised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin ; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest. Formerly 2 R. S. 65, § 47: § 47. A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.^i The Problem of the Revisers of the Revised Statutes. This section, at present under consideration,*^ and that next succeeding,** necessarily bring up for review the intricacy and tihe refinements of the old law relative to implied revocations of prior wills. The old revisers, with their habitual skill and perspicacity, have, in their more extended note to the sections dealing with the revocations of wills, summed up the entire situation which ,tliey wisihed to re- model. Nothing more admirable than this note exists in the entire literature on this subject.** The revisers, it must be remembered, were, however, disaiples of the school to which Lord Mansfield belonged, and they always ^1 Repealed, § 130, Decedent Estate *5§ 40, Decedent Estate Law. Law. " See Revisers' Note 18, Appendix **§ 39, Decedent Estate Law. II, infra. 278 The Decedent Estate Law. § 39 stood for the modernization of the common law. The entire Re- vised Statutes exemplifies the truth of this statement.*' The re- visers' attitude toward purely feudal principles in the common law was generally that of opposition, as they had no delicate problems of vested interests to deal with, such as those then existing in England, so long the suzerain of New York, and from which its laws were derived. It is possible to admire the professional work of the " great revisers," (and beyond any of their prede- cessors in this State, those of the Revised Statutes deserve that title) and yet discern at times that their impatience with some parts of the old law of English-speaking peoples is not always so well founded as they wished to believe. The debates in the Constitu- tional Convention of 1821 were not always temiperate, and to some extent they had a subtle influence on subsequent events and the framers of the Revised Statutes as well. Both those debates and the Revised Statutes were important instruments in fixing the pres- ent law, and in sweeping away the old legal institutions, habits and manners,*^ which were the heritage of past centuries. J Implied Revocations of Prior Wills before the Revised Stat- utes. Prior to the Revised Statutes, almost every alteration in tes- tator's circum,stances was a presumptive revocation of his prior will, whether testator retained an interest or not.*' We have seen before in this treatise that a devise was regarded in the old law as a specific appointment .to uses. Consequently, under the old law, a devise never operated on after acquired estates. So a testa- mentary gift in specie was presumptively revoked, when the testator dealt with the thing bequeathed in a manner inconsistent with a continued intention to bequeath it. The application of sudi principles, no doubt, tended to give rise to extremely nice questions of construction, and some errors were ^BAt the date the Revised Stat- great part, ceased to be relevant, utes took effect, they were consid- See for example Taylor's " Prece- ered very radical in many respects. dents of Wills," New York, 1843. <8Ten years after the Revised ^'Lovelass on Wills, 351, 352, et Statutes, the extent of the revisers' seq.; i Powell on Devises, S47 s^9-> changes was not fully realized, and Walton v. Walton, 7 Johns. Ch. the New York law books still con- 271 ; Beck v. McGillis, 9 Barb. 3Si tinued to be filled with English 53. cases, and citations that had, in § 39 Revocation of Wills. 279 consequently inevitable. That the old law concerning constructive revocations was aa ^aggravated, as the revisers considered, may be open to some question, for the jurisprudence of the seventeenth and eighteenth centuries was a masterly product of the human mind. It is impossible to read the old books on presumptive revo- cations of wills, such as Powell and Lovelars, and conclude that the old law of revocation was unsuited to the age, or that it waiS irrational, illogical or devoid of reason. The fact was, that at the time the Revised Statutes was enacted, social conditions had changed and demanded a new expression of law. But that the old law was inherently defective is questionable. The common law greatly favored the heir and- there was a uniform solici'tude to prevent his disinherison. In the eighteenth century, questions of revocation of devises were intimately concerned with the rights of the heir, in a country where the steady succession to landed property was of the utmost importance to existing political conditions.** When the franchise was confined to freeholders in this State, even after the alteration in the law of descent, the same importance was attached to implied or constructive revocations of devises. But when the Constitution of this State was altered in this respect, and lapsed devises were made to pass to the residuary devisees and not to the heir, it was very proper to alter the law relative to implied revocations of prior devises.*" This is probably the extent of the just criticism on the old law of construction of presumptive revo- cations favoring the heir. The new law is doubtless better adapted to existing institutions. It is necessary to go no farther in the condemnation of the old law concerning presum.ptive revocations of wills. The Revised Statutes. The scheme of the Revised Statutes was to change the old law of presumptive or implied revocations of prior wills by circumstances happening posterior to the will, and allow such revocations only in the extreme or prominent in- stances specified in the statute."" But the revisers conceded that *' Sir Thomas E. Tomlins pointed *' Similar alteration of the law of this out in 1835, in his article on the England followed the Revised Stat- old law of implied revocation of utes. wills, and see i Powell on Devises, ^^ See Revisers' Notes, 14, IS, 16, 548. 17, 18, Appendix II, infra. 28o The Decedent Estate Law. § 30 they might have omitted some cases which the Legislature oodd, however, supply, if necessary, in the future.^' Meanwhile, such omdtted cases wotdd, as it seems at present from the authorities, not continue to be constructive or implied revocationis of prior wills. A will would consequently stand unrevoked by circumstances not specified in the statute, although ail implied revocations are now in this State assumed to be abolished. ^^ The only matters in pais which now constitute a subsequent revocation of a prior will are concisely summarized in Langdon v. Astor's Executors.^' Construction of Section. The present section repeats the Re>- vised Statutes and therefore is to receive the same judicial construction.^* The section is a plain mandate that a partial change in the situation of property devised or bequeathed by a prior will shall be taken to operate as a revocation pro tanto, or only in so far as is necessary.''" No other section of the statute is clearer in its meaning or contains fuller directions for judicial construction. Indeed it is a mandate for cy pres construction. If an alteration in property passing by a devise or a bequest shall take place after a will is made, and the testator still retains an estate or interest of some kind in such property, that estate or interest so retained, if capable of passing by descent or on an intestacy, will pass to the devisee or legatee, and sudh change will not work a revocation of a prior will.^" But if the testator's aliena- tion is complete, the rule is otherwise.''^ The line between ahenations which divest the testator of all dis- positional interest, and those which do not, is perhaps narrow; but the section seems to be addressed to the retention of some 51 See Revisers' Note 18, Appendix Vandemark v. Vandemark, 26 id. II, infra. 416, 418. 52 § 34, Decedent Estate Law ; ^6 Adams v. Winne, 7 Paige, 97, Langdon v. Astor's Executors, 3 gg; Langdon v. Astor's Executors, Duer 447, SS8 16 N. Y. 9, 39; Dela- 16 N. Y. at p. 39; Vandemark v. field V. Parish, 25 id. 9, 99; Mat- Vandemark, 26 Barb. 416, 418. ter of Davis, 105 App. Div. 221, 228, ^7 McNaughton v. McNaughton, 34 affd., 182 N. Y. 468. N. Y. 201, 206; Adams v. Winne, / 63 16 N. Y. at p. 39. Paige, 97 ; Beck v. McGillis, 9 Barb. 5* See Fowler, Real Prep. Law 3S; Philson v. Moore, 23 Hun, 152; (3d ed.), 91. Brown v. Brown, 16 Barb. 569; 65 Arthur v. Arthur, 10 Barb. 9; Matter of Oilman, 65 Misc. 409. § 39 Revocation of Wills. 281 interest which constitutes a dispositional title in equity or at law; the mere retention of a lien by the testator, either legal or equitable, on an alienation, will not suffice to pass the proceeds of sale to the devisee or legatee.^" This section is extensive in operation; it refers to alterations in the property devised or bequeathed by any subsequent settlement, deed, or other act of the testator, but which shall not wlioUy divest the title of the testator. Such alterations are not per se any longer sufficient to work a revocation of a prior devise or bequest of the property affected by the subsequent settlement, deed or other act of the testator."' But where they do divest the testator of title, they continue to work a revocation of his prior devise or bequest.^" Reservation in this Section. This section reserves from its operation a will which the testator specially declares revoked in the instrument by which the alterati<^jn in his property is made. It will be readily perceived, that such instrument need not comply with the terms of section 34 of this act, and yet that it will be operative as a written revocation under this section. For example, if testator makes a written contract of sale of specific property, and in such contract, not witnessed or acknowledged, states that he intends such contract to operate as a revocation of his prior will, it will so operate, notwithstanding section 34 of this act."^ Sections 39 and 40 of this act, like their originals in the Revised Statutes, are to be read together. The sections are grammatically, and even technically, from the point of view of the original revisers, inseparable. They form branches of one remedial statute and both together are evidential of but one and the same intention.^^' 68 Walker v. Steers, 14 N. Y. fort, 108 id. 535, 540; Walker v. Supp. 398, and see under next sec- Steers, 38 St. Rep. 654. tion. *i See, however, the language of 59 § 39, Decedent Estate Law. opinion, Matter of Goldsticker, 192 «o § 40, Decedent Estate Law ; N. Y. at p. 37- McNaughton v. McNaughton, 34 '^^ Gray, Nature and Sources of N. Y. 201, 206; Burnham v. Com- Law, § 393. 282 The Decedent Estate Law. 40 § 40. Conveyance, when to be deemed a revocation. But if the provisions of the instrument by which such altera- tion is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen. Formrly 2 R. S. 65, § 48. § 48. But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and sucH condition be not performed, or such contingency do not happen.^^ The Old Law before the Revised Statutes. Prior to the Re- vised Statutes, if a testator alienated the thing previously devised or bequeathed, the devise or specific bequest was thereupon im- pliedly revoked both at law and in equity. It was a conclusive presumption of law that such an alienation, as it was precisely contrary to the terms of the prior devise or bequest, was in itself a revocation.^^ A will being ambulatory, the testator was always within his rights in so alienating a thing he had previously intended to give or pass by his will. Any other construction would have been an intolerable fetter on the power of alienation. The embarrassment in the old law"* was not, that actual transfers or alienations of the thing devised or bequeathed operated as an implied or presumptive revocation of a prior will, but that even testator's intended alteration in the thing so devised or beqtteathed often so operated and on very slight grounds."^ The reason that such partial or sUght alterations so operated was to be found in old doctrines of the common law favoring the heir on every con- 62 Repealed, § 130, Decedent Es- «* See i Powell on Devises, 547. tate Law. 548- 63 Lovelass on Wills, 352 ; i Pow- ^5 See opinion in Walton v. Wal- ell on Devises, 548. ton, 7 Johns. Ch. 268. § 4° Revocation of Wills. 283 structicn of devises away from him.''^ In regard to complete or executed alienations of things devised, there was and still is no help for the application of a doctrine of revocation, for the testator has by such alienation put it out of his power any longer to devise or bequeath the property alienated. The Revised Statutes. The Revised Statutes, now re-enacted in this section, did not attempt to change the former rule, that an absolute and executed alienation of a thing previously devised or bequeathed constituted a revocation of a prior will or an ademp- tion of a prior specific bequest. On the contrary, the statute, now expressed in this section, completely affirmed that rule. But the revisers did not intend that executory or partial alienations should longer constitute per se such a revocation. The reforms in the old law were really addressed to the law of revocation by partial alienations and to the legal presumptions deduced tJherefrom."^ The present section"' is but a complement of the prior section of the Decedent Estate Law. Construction of the Statute. The present section is a mere re-enactment of a like provision in the Revised Statutes, and it will receive the same construction."" That an executed alienation of property previously devised or bequeathed still operates as a revocation of the devise or bequest, there is no question. Nor could there be any sucli question, by reason of the ambulatory nature of wills.'" The real difficulty arises, not by reason of the former common law on this subject, but because of the precise language of the re- formatory statute itself, as applied to a case where tlie testator has taken back some security for the purchase money .^^ But the rule is now held settled in this State, and where the subsequent act of alienation is complete in itself, the revocation of the prior will is complete, and the devisee or legatee is not entitled to fol- low the proceeds of the exeaited sale, unless there is a direction in 66 See text under prior section, '" McNaughton v. McNaughton, and I Powell on Devises, 548. 34 N. Y. 201, 203, 206; Dowd's Will, 6'§ 39, Decedent Estate Law. 8 Abb. N. C. 118. 68 § 40, Decedent Estate Law. '^ §§ 37. 38, and 39. Decedent Es- 69 See authorities cited. Fowler's tate Law. Real Prop. Law (3d ed.), p. 91. 284 The Decedent Estate Law. § 40 the will for a conversion, and the devisee or legatee is otherwise entitled by the terms of the will to such proceeds.'^ Where the devisor conveys the property devised, and it is re- conveyed to him, the conveyance does not operate as a revocation.''* Executory Contract of Sale. That an executory contract may in some cases, notwithstanding section 37 of this act, still operate as a revocation of a prior devise or bequest seems ■ appa-rent from the cases. ^* By the law, as it stood before the Revised Statutes, a convey- ance, even if for the use of the testator, operated as a revoca/tfon of a prior devise, and parol evidence was inadmissible to show that the testator meant his prior will to remain in force, unrevoked by the subsequent conveyance." But since the Revised Statutes, it is doubtful if an alienation to the proper use of the grantor would I'evoke his prior will, as where the testator conveys, and the prop- erty is reconveyed to him, there is now no revocation of a prior will of such property because of the first alienation.'"' This section especially excepts from its operation contingent or conditional conveyances when the condition is not performed or the contingency does not happen. But the exception last noticed evidently means a condition or contingency affecting the convey- ance itself, and not a conveyance which is absolute as to grantor, but made on, or subject to, some contingency or condition subse- quent, which may ultimately defeat the grant. '2 Beck V. McGillis, 9 Barb. 35; ■?* Walker v. Steers, 38 St. Rep. Brown v. Brown, 16 id. 569; Van- 654, 14 N. Y. Supp. 398; Burnham demark v. Vandemark, 26 id. 416; v. Comfort, 108 N. Y. S3S, 54°; Langdon v. Aster's Executors, 16 Sewell v. Underbill, 127 App. Div. N. Y. 9, 39; McNaughton v. Mc- 92. Naugbton, 34 id. 201, 203; Barstow ''^Lovelass on Wills, 352, 353- V. Goodwin, 2 Bradf. 413; Pbilson '^ Brown v. Brown, 16 Barb. 569. V. Moore, 23 Hun, 154; Dowd's Sed cf. Waltori v. Walton, 7 Johns. Will, 8 Abb. N. C. 118. Ch. at p. 269. '3 Brown v. Brown, 16 Barb. 569. § 41 Revocation of Wills. 285 § 41. Canceling or revocation of second will not to revive first. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, can- celing or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revoca- tion, that it was his intention to revive and give effect to his first will; or unless after such destruction, canceling or revocation, he shall duly republish his first will. Formerly 2 R. S. 66, § 53: § S3. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, cancelling or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, cancelling or revocation, he shall duly republish his first will.'' Old Law Before the Revised Statutes. The revisers of the Revised Statutes, in their note to the original of this section, with accustomed thoroughness, showed the jirecise conditions which they desired to change. That note is so full that little else is neces- sary to enahte the reader to undersitand the siGope of the present section.''* The reader waM at this point recall that after the Statute of Wills the common-law courts alone had cognizance of devises. The ecclesiastical courts had complete jurisdiction of testaments, or be- quests of personalty. In the common-law courts, a will deliberately and unconditionally canceled, and not prospectively only add in dependence upon the validity of a new testamentary disposition, was not revived by the cancellation of the second wilL'^ But where a second will was made, the; first remaining uncanceled, and after- ward the second will was canceled, the first was in force as a good will at the testator's death."" But in regard to wills of personalty, in the ecclesiastical cotirts the prima facie presumption was against "Repealed, i 130, Decedent Es- '9 Burtenshaw v. Gilbert, Comp. tate Law. 49, cited Lovelass on Wills, 347. '8 See Revisers' Note 19, Appendix 8" Goodright v. Glazier, 4 Burr. II, infra. 2S12. 286 The Decedent Estate Law. § 41 the revival of the first testament by the cancellation of the second, although such presumption might be rebutted by evidence of cir- cumstances accompanying the destruction of the second, which might give it the effect of restoring the firs't.*^ It will also be recalled, that under the old law a codicil was prima facie a republication of a prior will, so as to bring such will down to the date of the codicil,'^ even at a time when after-acquired property did not pass by a prior devise;*^ for, prior to the Revised Statutes, a prior devise was only a particular appointment, and could not operate on subsequently acquired real property.** The effect of a revocation of a codicil, which revoked a prior devise, has been stated in the preceding paragraphs ; for there was no dif- ference in effect between the revocation of a revocatory codicil and the revocation of any other revocatory testamentary instrument.*^ The Revised Statutes. The Revised Statutes settled the rule uniformly in all the courts of the State; for at that time the sur- rogates' courts were inclined generally to follow the rule in the spiritual courts,*" while the courts of common law were compelled to follow the rule of the common law by constitutional limitation. Since then, a revocation of a subsequent will or codicil, which had revoked a prior will, never operates to revive such prior will, unless it appears in the act of revocation itself that such was the intention of testator.*^ The revisers intended to settle the pres.umption against the revival of the prior will by the revocation of a revoca- tory instrument, and to exclude oral evidence to prove such intended revival.** siLovelass on Wills, 347, citing ^*2 B. S. 57, § 5, now § 14, De- Ex parte Hellier, 3 Atk. 798, 4 Burr. cedent Estate Law ; Lord Mansfield 2513; Moore v. Moore, i Phill. 375; in Harwood v. Good'right, Cowp. Wilson V. Wilson, 3 id. 543. 9; Markby, Elements of Law, §§ 82Lovelass on Wills, 373, citing 580, 581. Barnes v. Crowe, i Ves. Jr. 486; 85(7/. Brant v. Wilson, 8 Cow. 56- Williams v. Goodtitle, 10 B. & C. ^6 See Revisers' Note 19, Appendix 89s; Van Cortlandt v. Kip, i Hill, II. 590; s. C, in error, 7 Hill, 346; "See 2 R. S. 66, § 53, supra. Matter of Campbell, 170 N. Y. 84, ^s See Revisers' Note 19, Appendix 83 See under § 11, Decedent Estate Law, p. 66, supra. II, infra. § 41 Revocation of Wills. 287 Construction of this Section. The present section is a mere re-enactment, totidem verbis, of the Revised Statutes and the con- struction is the same. At the present day, the revocation of a codi- cil, or other subsequent will, which had revoked a prior will, does not ipso facto revive such prior will.^" A late case has settled the law, that where a prior will is revoked by a later, and the later will subsequently destroyed by burning it, the prior will is not revived, even though testator while burning it stated orally in substance to a bystander that he wanted the first will revived.'" On appeal it was distinctly held, that a prior will once revoked could be revived only by a formal republication in conformity with the statute regulating the execution of wills."^ The decision, exceed- ingly important as it is and doubtless tending to good results, ap- pears to exceed the reforms contemplated by the revisers in their note to this section."- The decision in Matter of Stickney excludes any force in the words of the statute " unless it appear by the terms of such revocation that it was his " (testator's) " intention to revive and give effect to liis first will." °' Now when the re- vocatory instrument is itself destroyed by burning, ordinary oral evidence of the testator's intention to revive his first will, though part of the res gestce, is excluded, and all the force of the section is to be placed on the last disjunctive sentence relative to repub- lication.^* The decision in Matter of Stickney^' does not, however, appear to cover a case where testator's destruction of his later revocatory will is in the presence of the subscribing witnesses to the oniginal will, and testator then states to them while in the act of cancella- tion, that he wishes such original will revived, but both testator 89 Matter of Goldsticker, 193 N. "Matter of Stickney, 161 N. Y. Y. at p. 37; Matter of Brewster, 72 42; § 21, Decedent Estate Law. App. Div. 587; Matter of Cunnion, 92 Revisers' Note 19, Appendix II, 13s id. 864. Sed. cf. Matter of infra. Campbell, 160 N. Y.. 84, as to a 93 See above § 41. will revived by second codicil which 94 Matter of Brewster, 72 App. revoked a former codicil revoking Div. 587; Simmons v. Simmons, 26 the will. Barb. 68, 76. 90 Matter of Stickney, 31 App. Div. 95 igi n. y. 42. 382. 288 The Decedent Estate Law. § 41 and the subscribing witnesses fail to re-comply with section 21 of this act. In other words, if the testator does not then re-execute his original will, and the witnesses do not then reattest it in his presence, is the effect of such a declaration of testator to revive the earlier will ? ®® 58 See Simmons v. Simmons, 26 a republication is tantamount to a Barb, at p. 76, to the effect that new execution. § 42 Record of Wills. 289 § 42. Record of wills in county clerk's office. A will of real property, which has been, at any time, either before or after this chapter takes effect duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator, with the will annexed, must cause the same, or an exemplified copy thereof, to be so recorded, in each county where real prop- erty of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved. Formerly § 2633, Code of Civil Procedure: § 2633. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state, with the cer- tificate of proof thereof annexed thereto, or indorsed thereon, or an exem- plified copy thereof, may be recorded in the office of the clerk or the regis- ter, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator, with the will annexed, must cause the same, or an exemplified copy thereof, to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or 19 290 The Decedent Estate Law. § 42 exemplification, or an exemplification of the record thereof, must be re- ceived in evidence, as if the original will was produced and proved." The first act on this subject was chapter 182, Laws of 1846: AN ACT to authorize the recording of wills of real estate and of exem- plifications of judgment records and decrees in partition suits, and for other purposes. Passed May 11, 1846. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. Any will of real estate which shall have been duly proved m the supreme court, or court of chancery, or before the surrogate of any county in this state, with the proofs taken, on the proof thereof, and the certificate of proof annexed thereto or endorsed thereon, may be recorded in the clerk's office of any county in this state, in the same manner that conveyances of real estate are now authorized to be recorded. Any exem- plification of the record of any such will from the office of the clerk of the supreme court, register, assistant register, or clerk in chancery, or surrogate, where the same may be recorded, or from any other office where the same hereafter by law may be recorded, may in like manner be re- corded in the clerk's office of any county. The record of such will or exemplification so made as aforesand, and the exemplifications of such record shall be received in evidence, and shall be as effectual in all cases as the original will would be if produced and proved, and may in like manner be repelled by contrary proof.'^ Chapter 182, Laws of 1846, was amended in 1869 as follows: CHAPTER 748. AN ACT to amend section one of chapter one hundred and eigfity-two, of laws of eighteen hundred and forty-six, in relation to the recording of of wills. Passed May 8, 1869. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. Section one of chapter one hundred and eighty-two, of the laws of eighteen hundred and forty-six, is hereby amended so as to read as follows : I I. Any will of real estate which shall have been duly proved in the supreme court or any court of chancery, or before the surrogate of any 97 Repealed, § 130, Decedent Es- '8 Amended by chap. 748, Laws of tate Law. i860. § 42 Record of Wills. 291 county in this state, with the certificate of proof annexed thereto or indorsed thereon, may be recorded in the clerk's office of any county in this state, in the same manner that conveyances of real estate are now authorized and recorded. Any exemplification of the record of any such will, from the office of the clerk of the supreme court, register, assistant register, or clerk in chancery, or surrogate, where the same may be recorded, or from any other office where the same may hereafter by law be recorded, may in like manner be recorded in the clerk's office of any county. The record of such will or exemplification so made as aforesaid, and the exemplification of such record shall be received in evidence, and shall be as effectual in all cases as the original will would be if produced and proved, and may in like manner be repelled by contrary proof.'' In 1880, the foregoing act wa.s carried into the siecond part of the Code of Civil Procedure^ as section 2633 thereof, and it then read as follows: Section 2633. A will of real property, which has been at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the cer- tificate of proof thereof annexed thereto, or indorsed thereon, may be recorded in the office of the clerk or the register, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator, with the will annexed, must cause the same to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any office where the same has been recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.^ In 1881, by chapter 535, Laws of 1881, section 2633, Code of Civil Procedure, was amended to read as follows : Section 2633. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court or the court of chancery, or before a surrogate of the state, with the cer- tificate of proof thereof annexed thereto, or indorsed thereon, may be 99 Repealed chap. 245, § i. If 45, 2 Amended by chap. S35. Laws of Laws of 1880. 1881. 1 § 2633, Code Civ. Pro. enacted by chap. 178, Laws of 1880. 292 The Decedent Estate Law. § 42 recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator with the will annexed must cause the same to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other^ office where the same has been recorded, either before or after this chapter takes effect, may be, in like manner, recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.* In 1882, by chapter 399, Laws of 1882, section 2633, Code of Civil Procedure, was finally amended to read as follows: Section 2633. A will of real property, which has been, at any tinje, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof, annexed thereto, or indorsed thereon, or an exemplified copy thereof fi may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator with the will annexed, must cause the same, or an exemplified copy thereof,^ to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such record or an exem- plification of the record thereof, must be received in evidence, as if the original will was produced and proved.^ As thus amended, section 2633, Code of Civil Procedure, passed into the Decedent Estate Law as section 42 thereof. Comment. The changes made in this section of the statute, since its original enactment in 1846,' have been only in the direction of its enlargement by the amendments set out in extenso above, and all now repealed. 3 The italics are ours, to indicate « Repealed, § 130, Decedent Es- the amendment. tate Law. * Amended chap. 399, Laws of 'Chap. 182, Laws of 1846. 1882. 6 The italics are ours, to indicate the amendment. § 42 Record of Wills. 293 This section is important in connection with the statutes on con- structive notice by record and those relating to proof of conveyances.* Chapter XVI, Girard on Titles,' outlines the history of the proof and record of wills in this State, and may be useful to illustrate the scope of this section. The section in reality relates mainly to the proof of devises and is largely procedural in scope.^" In so far as its provisions are mandatory on executors, it seems to be without penalty for non-compliance.^^ A devise without probate is operative as a conveyance to con- fer title on devisee, and will support ejectment.^^ Entry on a devise and continued actual possession would be operative as con- structive notice, without record of the devise in any public office.^' Cross-reference to Section 48, Decedent Estate Lav^r. By an amendment^* to the Decedent Estate Law,^° adding section 48 of this act, section 2514, Code of Civil Procedure, is now made ex- pressly applicable to this section.^® s Taylor v. Millard, 118 N. Y. 244. is Phelan v. Brady, 119 N. Y. 587; ' Sth ed. pp. 442, 4SS, 456. Dingley v. Bon, 130 id. 607 ; Gibson 1" See Wilson v. Van Epps, 38 v. Thomas, 180 id. 483, 493. Misc. 486, 488; Taylor v. Millard, "§ 16, chap. 240, Laws of 1909. 118 N. Y. 244, 252. 15 Chap. 18, Laws of 1909. 11 See Young v. Brush, 28 N. Y. is See below, § 48, Decedent Es- 667, 671, as to duty. tate Law. 1= Corky v. McEImeel,, 149 N. Y. 228, 235. 294 The Decedent Estate Law. § 43 § 43. County clerk's index of recorded wills. Upon record- ing a will or exemplification, as prescribed in the last sec- tion, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office. Formerly § 2634, Code Civil Procedure: § 2634. Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substan- tially in the same manner, as if it was a deed recorded in his ofEce,^' and he is entitled to receive the same fees therefor, as for recording a deed. An executor, or administrator, with the will annexed, who causes such a record to be made, must be allowed, in his account, the fees paid him therefor. Section 2634 was in the year 1880 taken into the Code of Civil Procedure^^ from chapter 182, Laws of 1846, sections 3 and 4, of which were as follows : AN ACT to authorize the recording of wills of real estate and of exem- plifications of judgment records and decrees in partition suits, and for other purposes. Passed May 11, 1846. The People of the State of New York, represented in Senate and Assembely, do enact as follows : i' Section 3. On recording any such will or exemplification the clerk shall index the same in the indices of deeds, substantially as such clerks are now required to index deeds recorded in their respective offices. § 4. Such clerks shall receive for such recording the same fees which shall be from time to time allowed them for the recording of conveyances of real estate; and any executor of a will or administrator with the will annexed who shall procure such will to be recorded in the clerk's office of any county in which the lands devised thereby may be situated, shall be allowed the fees paid by him for such recording in the settlement of his accounts.^" " Repealed down to and includ- 20 gee above, § 2634, Code Civ. ing words, "in his office," by § 130, Pro., repealed in part by § 130. De- Decedent Estate Law. cedent Estate Law. 18 Chap. 178, Laws of 1880. 19 See § I of that act under § 42, Decedent Estate Law. § 43 Index of Recorded Wills. 295 Cross-reference to Section 48, Decedent Estate Law. By an amendment^^ to the Decedent Estate Law/^ adding section 48 of this act, section 2514, Code of Civil Procedure, is now made ex- pressly applicable to this section.^^ 21 § 16, chap. 240, Laws of 1909. 23 See below, § 48, Decedent Es- 22 Chap. 18, Laws of 1909. tate Law. 296 The Decedent Estate Law. § 44 § 44. Recording will proved in another state or foreign country. Where real property situated within this state, or an interest therein, is devised or made subject to a power of disposition by a will duly executed in conformity with the laws of this state, of a person who was at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been ad- mitted to probate within the state or territory, or foreign country, where the decedent so resided, and is filed or re- corded in the proper office as prescribed by the laws of that state or territory or foreign country, a copy of such will or of the record thereof and of the proofs or of the records thereof, or if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as pre- scribed in section forty-five of this chapter, or if no proofs and no statement of the substance of the proofs, be on file or recorded in such office, a copy of such will or of the record thereof, authenticated as prescribed in said section forty-five, accompanied by a certificate that no proofs or statement of the substance of proof of such will, are or is on file or recorded in such office, made and likewise authen- ticated as prescribed in said section forty-five, may be re- corded in the office of the surrogate of any county in this state where such real property is situated ; and such record in the office of such surrogate or an exemplified copy thereof shall be presumptive evidence of such will and of the exe- cution thereof, in any action or special proceeding relating to such real property. [As corrected by chap. 240, § 13, Laws of 1909, changing word " found " to " proved " in caption of section.] Section 44 of the Decedent Estate Law was transcribed and re- enacted from section 2703 of the Code of Civil Procedure of the year 1909. But the history of that section of the Code of Civil § 44 Recording Foreign Wills. 297 Procedure begins in 1864 with chapter 311 of the laws of that year, as follows: AN ACT in relation to wills. Passed April 23, 1864; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. Where any real estate, situate in this state, has been devised by any person residing out of this state, and within any other state or territory of the United States, and the last will and testament of such person shall have been finally admitted to probate in such other state or territory, and filed in the office where the same has been so admitted to pro- bate, an exemplified copy of said last will and testament and of the proofs, may be recorded in the office of the surrogate of any county in this state where any real estate so devised is situate, which record in said surrogate's office, or an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will and of the due execution thereof, in all proceedings relating to the lands so devised. § 2. This act shall take effect immediately.^ In 1872 the foregoing act was amended, by chapter 680, to read as follows: AN ACT to amend an act entitled "An act in relation to wills," passe3 April twenty-third, eighteen hundred and sixty-four. Passed May 14, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. The first section of the act entitled "An act in relation to wills," passed April twenty-third, eighteen hundred and sixty-four, is hereby amended so as to read as follows : § I. Where any real estate situate in this state has been, or shall here- after be, devised by any person residing out of this state, and within any other state or territory of the United States, and the last will and testament of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of said last will and testament, or of such record thereof, and of the proofs, may be recorded in the office of the surrogate of any county in this state where 21 Amended, chap. 680, Laws of 1872; chap. 324, Laws of 1878. 298 The Decedent Estate Law. § 44 any real estate so devised is situated, which record in said surrogate's office, or an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will and of due execution thereof, in all actions or proceedings relating to the lands so devised. § 2. This act shall take effect immediately. In 1878, by chapter 324 of that year, the amending act was itself amended to read as follows : AN ACT to amend chapter six hundred and eighty of the laws of eighteen hundred and seventy-two, entitled "An act to amend an act entitled 'An act in relation to wills,' " passed April twenty-third, eighteen hundred and sixty-four. Passed May 22, 1878. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. The first section of chapter six hundred and eighty of the laws of eighteen hundred and seventy-two, entitled "An act to amend an act entitled 'An act in relation to wills,' " passed April twenty-third, eighteen hundred and sixty-four, is hereby amended so as to read as follows : Section i. When any real estate, situate in this state, has been or shall hereafter be devised by any person residing out of this state and within any other state or territory of the United States, and the last will and testa- ment of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of said last will and testament, or of such record thereof, and of the proofs, if any proofs are on file or recorded in said office or court, which fact shall be certified by the probate court or clerk thereof, in which said will is recorded, may be recorded in the office of the surrogate of' any county in this state where any real estate so devised is situated, which record in said surro- gate's office, or an exemplified copy thereof, shall be, in cases when the original cannot be produced, presumptive evidence of said will, and of the due execution thereof, in all actions or proceedings relating to the lands so devised. § 2. This act shall take effect immediately.^^ As tlie law thus stood in 1878 it was carriied into the second part of the Code of Civil Procedure of 1880, being made section 2703 thereof, ^° as follows : Section 2703. Where real property, situated within the state, or an inter- est therein, which would descend to an heir, is devised, or made subject to 25 Repealed chap. 245, Laws of ^s Chap. 178, Laws of 1880. 1880. § 44 Recording Foreign Wills. 299 a power of disposition, by a will, valid, and duly executed for that purpose, under the laws of the state, of a person, who was at the time of his death, a resident elsewhere within the United States; and the will has been finally admitted to probate, by the judgment, decree, or order of a competent court, within the state or territory where the decedent so resided; and is filed or recorded in the proper office, as prescribed by the laws of that state or territory ; an exemplified copy of the will, or of the record thereof, of the judgment, decree, or order, admitting the same to probate, and of the proofs, or of the record thereof, or a certificate of the substance of the testimony, if such a certificate is on file or recorded, or if no proofs nor any certificate of the substance thereof is on file or recorded, a certificate of that fact, may be recorded with the surrogate of any county of the state, where the real property is situated. Such a record, or an exemplified copy thereof, is presumptive evidence of the will, and of the execution thereof, in any action or special proceeding relating to the real property. With the bill for the last eight chapters of fihe Code of Civil Pro- cedure,^^ the Code Commissioner (the late Mr. Throop) reported the following explanatory note on section 2703 : " (L. 1864, ch. 311 (6 Edm., 254) as amended by L. 1872, ch. 680 (9 Edm., 420), and L. 1878, ch. 324). The object of the amendment of 1878 was to cover a case where oral proofs only were taken. The bills for this code, submitted in 1877 and 1878, contained a provision, prepared by the commis- sioners to cover such a case, in accordance with a suggestion of the Hon. Owen T. Coffin, surrogate of Westchester county, contained in the follow- ing extract from a communication from him, relating to the corresponding section of the commissioners' first draft : ' In the state of Connecticut, the proofs are oral, and the judge of probate simply certified that A. B. and C. D., the witnesses, on examination before him, testified that they saw the testator sign, etc. I have found difficulty in admitting wills so proved in that state to record, because of an absence of an exemplified copy of the proofs.' Perhaps the remedy, applied by the Legislature of 1878, went too far, and will lead to trouble hereafter, but it was not deemed expedient, in framing this section for the bill of 1879, to run counter to such a recent expression of the legislative will. Accordingly the substance of the amend- ment of 1878 has been incorporated into this section. But, in framing it, the principle, which the Legislature of 1878 apparently overlooked, that the proofs ought to show that the will and its execution are sufficient under our laws, was constantly borne in mind and recognized, as far as the amendments of 1878 would allow. The provision was also extended to a devisable interest and a power of sale, contained in a will." ^s 27 Chap. 178, Laws of 1880. 28 See Mr. Throop's (ist ed. part II) N. Y. Code Civ. Pro. p. 610. 3CX) The Decedent Estate Law. § 44 We have now followed the Act of 1864 into the Code of Civil Procedure, and must next give the amendments to section 2703, Code of Civil Procedure. The first amendment appears to have been made in the year 1888 and is as follows : CHAPTER 495. AN ACT to amend sections twenty-six hundred and ninety-five, twenty-six hundred and ninety-six, twenty-seven hundred and three and twenty-seven hundred and four, and to repeal section twenty-seven hundred and five of the Code of Civil Procedure. Approved by the Governor June 4, 1888. Passed, three-fifths being present : The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 3. Section twenty-seven hundred and three of the Code of Civil Procedure is amended so as to read as follows : § 2703. Where real property situated within this state, or an interest therein, is devised, or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this state, of a person who was, at the time of his death a resident elsewhere within the United States, and such will has been admitted to probate within the state or territory where decedent so resided, and is filed or recorded in the proper office as pre- scribed by the laws of that state or territory, a copy of such will or of the record thereof, and of the proofs or of the record thereof, or, if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by a certificate that no proofs or statement of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of this state where such real property is sit- uated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execu- tion thereof, in any action or special proceeding relating to such real property. § 44 Recording Foreign Wills. 301 In 1897 th^ following amendment was enacted : CHAPTER 60s. AN ACT to amend section twenty-seven hundred and three of the code of civil procedure relative to recording wills probated in other states or territories of the United States. Became a law May 19, 1897, with the approval of the Governor. Passed, a majority being present f The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section twenty-seven hundred and three of the code of civil procedure is hereby amended to read as follows : § 2703. Recording will proved, in other states. Where real property sit- uated within this state, or an interest therein, is devised, or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this state, of a person who was, at the time of his death, a resident elsewhere within the United States, and such will has been ad- mitted to probate within any state or territory of the United States and is filed or recorded in the proper office as prescribed by the laws of that state or territory, a copy of such will or of the record thereof and of the proofs or of the record thereof, or, if the proofs are not on file or re- corded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by' a certificate that no proofs or statements of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as pre- scribed In this article, may be recorded in the office of the surrogate of any county of this state where such real property is situated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property. § 2. This act shall take effect September first, eighteen hundred and ninety-seven. 302 The Decedent Estate Law. § 44 In 1900 the following amendment was enacted: CHAPTER 633. AN ACT to amend section twenty-seven hundred and three of the code of \ civil procedure, relating to the recording of wills. Became a law April 23, igoo, with the approval of the Governor. Passed, a majority being present: The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section twenty-seven hundred and three of the code of civil procedure is hereby amended so as to read as follows : § 2703. Recording will proved in other states. Where real property sit- uated within this state, or an interest therein, is devised, or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this state, of a person who was, at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been admitted to probate within the state or territory, or foreign country, where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory or foreign country, a copy of such will or the record thereof and of the proofs or of the records thereof, or if the proofs are not on file or re- corded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in this article or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by a certificate that no proofs or statement of the substance of proof of such will,, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of this state where such real prop- erty is situated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property. § 2. This act shall take effect September first, nineteen hundred. As thus finally amended section 2703, Code of Civil Procedure, was in 1909 incorporated in secton 44, Decedent Estate Law,^' and then repealed.^" 28 Chap. 18, Laws of 1909. ^ § 130, Decedent Estate Law. § 44 Recording Foreign Wills. 303 Comment. It will be perceived that this section relates wholly to a devise of real proj)erty, or of a power thereover, executed at his domicile, or in the country of his domicile, by a person who has a legal residence in another State of the United States, or in a foreign country; when such devise or will is duly filed or pro- bated in the jurisdiction of the testator's domicile. Such a will is known not inaccurately as a " foreign will," although there is said to be some ambiguity in the use of the term " foreign will." "^ Such a devise or will of real property, when executed in conformity with the law of this State, may be regularly admitted to probate here as a will of real property f^ and as we shall see later under this section, the production oi the original devise in this jurisdic- tion is not necessary, as it may be produced before the surrogate's commissioners or delegates.^^ If probate in the ordinary form is not so taken, resort may be had to this present section of this act,^* or in 'a proper case to an action to establish siuch will as a will of real or personal property or both.»° A will of personalty, on the other hand, executed in a foreign jurisdiction, may be executed according to the laws of testator's domicile, and in some instances such a will may be proved here in ordinary form,^° or it may also be established by action,^^ or letters ancillary may issue on the foreign probate.'* But it is not neces- sary to consider further the proof or establishment of wills of per- sonalty under this section, which relates only to devises.'^ Historical Retrospect. As by the common law (and the exist- ing law is not yet different in this respect) a devise of lands was SI Redfield's Surrogate Courts (sth =8 § 2695, Code Civ. Pro. Cf. ed.), 281; Russell v. Hart, 87 N. Y. Taylor v. Sj'me, 162 N. Y. 513. at p. 24. S9 On the subjects of foreign ^2 § 23, Decedent Estate Law. domicile and the application of for- Cf. § 270s, Code Civ. Pro. eign law generally to wills, see s' Spratt V. Syms, 104 App. Div. two very able articles entitled " The at p. 237. Renvoi Theory" and the "Apprecia- 31 § 44, Decedent Estate Law. tion of Foreign Law:" (This con- 55 § 1861, Code Civ. Pro. tinental notion is not, however, 56 § 23, Decedent Estate Law, and favored in England) : 10 Col. Law see text under §i 23, 24, 47, Dece- Jour. 190, 327. Cf. 35 Law Mag. dent Estate Law. and Rev. 336. 37 § 1861, Code Civ. Pro; Younger V. Duffie, 94 N. Y. 535. 304 The Decedent Estate Law. § 44 regarded as a species of conveyance, differing from ,an ordinary- conveyance only in the solemnities which accompanies its execu- tion and in some minor rules of construction,^" the non-productioo of the original devise was sometimes an embarrassment in a trial involving legal titles. A certified or authenticated copy of a re- corded devise or foreign will was, therefore, a convenience, if made ■evidence by some statute in cases made and provided. The present section of this act owes its existence to chapter 311 of the Laws of 1864. But prior to 1864, foreign wills might be proved in some form in the surrogates' courts, even before the act empowering surrogates to issue a commission to take the evidence of witnesses.*^ In a very important opinion in Russell v. Hart, the jurisdiction of the surrogates' courts and courts of probate of the State, to take proofs of foreign wills not produced, is very concisely traced and conceded.''^ Before the passage of the act of 1864, hereafter re- ferred to, it was the custom to admit foreign wills to probate when produced*^ or not produced** and there would seem to be nothing in the law which now prevents a probate, in ordinary form, of foreign devises executed in conformity with the laws of this State, even if they can not be produced in this jurisdiction.*'* History of this Section. The acts set out under this section, beginning with that of 1864, were only an effort to systemize the procedure on foreign wills, and to remedy diffiouilties naturally in- herent in a situation where a devise could not be produced in this jurisdiction. But as devises of lands were leffective to pass title *" Markby, Elements of Law, and see Estate of Deleplaine, 19 § 581 ; Lord Mansfield in Harwood Abb. N. C. 36, 45 Hun, 225 ; Spratt V. Goodright, Cowp. 90; Van Alst v. Syms, 104 App. Div. p. 237. V. Hunter, s Jolins. Cli. 148, 155; « white v. Howard, 46 N. Y. 144, Corley v. McElmeel, 149 N. Y. 228, 145. 236; Dixon V. Cozine, 64 Misc. 602; •^''Lynes v. Townsend, S3 N. Y. Pollock V. Hooley, 67 Hun, 370. 558, S59- Cf. Younger v. Duffie, 94 ^iChap. 460, Laws of 1837; Ish- id. 538. man v. Gibbons, I Bradf. 69; i ''^ § 23, Decedent Estate Law; Greenl. 366, § xi ; i R. L. 449, § xv. Spratt v. Syms, 104 App. Div. 232, *2 Russell V. Hart, 87 N. Y. 19, 237. § 44 Recording Foreign Wills. 305 without any probate whatever/'' their probate was not always es- sential, although highly convenient for many purposes, including the advantage of a record title,*^ and tlie longer bar afforded in actions by or against adverse claimants to lands devised.** But if the foreign devise is not of an estate, but of a power over the legal title under the Statutes of Uses or Powers, record may be neces- sary.*^ Wills of Personal Property. Title to personal property of decedents, on the other hand, is dependent not on the will, but on the probate proceedings in some proper jurisdiction.^" But althougfh so dependent, the title of an executor or an administrator always relates back to the death of the testator.^"- There are fundamental differences between wills of real property and wills of personalty. It has been well said, in substance, that in English law, not one principle of the law relaiting to devolution of titles to land on death of owner is applicable to a testate or an intestate sucoessiion to per- sonal property. This is doubtless true; the basic conceptions of the two systems are different, from beginning to end. In origin, de- velopment, history, principle, and application, they have no common ground. O'ne is feudal in origin, the other Roman or canonical and ecclesiastical. We have stated that the title of the executo^r or administrator of goods and chattels of decedent depends wholly on the probate proceedings, as in the instance where a sole executor dies and a successor is appointed. In all such successions to per- sonal property, whether original or derivative, the title of the executor or adminiistrator, while it naturally relates back to the « Corley v. McElmeel, 149 N. Y. " Pollock v. Hooley, 67 Hun, 370. 228. Cf. Rogers v. Rogers, 3 Wend. ^^ Lynes v. Townsend, 33 N. Y. at at p. SIS ; Wallace v. Payne, 14 App. p. 561 ; Corley v. McElmeel, 149 id, Div. 597, 599; Dixon v. Cozine, 64 at p. 236; Estate of Langbein, i Misc. 602; Pollock V. Hooley, 67 N. Y. Civ. Pro. Rep. 226; § 2694, Hun, 370; Matter of Nash, 37 Misc. Code Civ. Pro. now § 47, Decedent at p. 708. Estate Law; § 2695, Code Civ. Pro. ■*' Anderson v. Anderson, 112 ^^M3.r\!ihy, Elements of Law, N. Y. 104, 108. §§ s68, 569, S77, and see below under *^ Corley v. McElmeel, 149 N. Y. § 98, Decedent Estate Law, 228, 336; § 46, Decedent Estate Law. 20 3o6 The Decedent Estate Law. § 44 death of the deceased owner, is wholly dependent on the subsequent proceedings in the court of probate or surrogates' courts.^^ Construction of this Section. This section of the Decedent Estate Law, as it will be perceived, relates wholly to a devise of real property or of a power thereover. Rights over real property and legal titles thereto are fundamentally dependent on the common law of the land by constitutional reservations. °^ But this sec- tion is doubtless in the direction of assimilating the rules in regard to devises, which can not be produced here, to the laws regulating probate of wills of personalty and successions to personalty; for the regularity and conclusiveness of such foreign devises, when re- corded under this section, now depend on the regularity of the proceedings taken in the domestic surrogates' courts, as well as on the regularity of the proceedings in the foreign courts, which in- clude, in law, the courts of the other States of the United States.'* It becomes important, then, to determine when a copy of a for- eign will and probate are entitled to record under this section, for (like all other statutory proceedings) the steps taken to record a copy of a foreign will and an authenticated copy of the foreign probate proceedings must comply with both this section and the next section of this act,'^ in order to be of any value under such provisions.^" A devise of real property, in order to transfer title to lands, must when made out of this State, even under this section, con- form in its execution and dispositions to the laws of this State; as legal titles to lands in this State, are always dependent on the law ret sitce. In other words, title to real property can only pass ssCorley v. McElmeel, 149 N. Y. 2 id. 226, 229; i Dem. 448; Matter at p. 236; and see text under § 23, of Nash, 37 Misc. 706, 708; Bradley Decedent Estate Law, supra. v. Krudop, 128 App. Div. 200; Mat- 5=^ Rogers v. Rogers, 3 Wend, at ter of Law, 56 id. 454. p. 51,15 ; Corley v. McElmeel, 149 66 § 45^ Decedent Estate Law. N. Y. at p. 237. 66 Bradley v. Krudop, 128 App. "Estate of Shearer, i N. Y. Civ. Div. 200; Matter of Law, 56 id. 454. Pro. Rep. 455; Estate' of Langbein, § 44 Recording Foreign Wills. 307 in conformity with the law of the State where the real property is situated." Consequently, a foreign will and the exemplification of the pro- bate thereof must in some way disclose a subsitantial compliance with the laws of this State in regard to the execution of wills oi real property.^* Otherwise, the copy of such foreign will and pro- bate is not entitled to be recorded in the surrogates' courts of this State, or to be evidential of a devise of lands. ''^ It appears that evidence aliunde, that there was such a compliance with the laws of this State, will not suffice so as to entitle a copy of the foreign will and an authenticated copy of the probate of the original to be recorded in the surrogates' courts of this State under this section."" But it appears also, that the foreign probate proceedings may within a reasonable time be opened or extended in some regular way, so as to show in fact a compliance with the laws of this State; and that then the copy of the foreign will and the exemplified copy of all proceedings to probate the same may be entitled to record under this section."^ At least, this would seem a reasonable construction of this act, for if the foreign proceedings could not be enlarged within a reasonable time so as to show an omission and a de facto compliance with the laws of this State, the ruling may prove a hardship to suitors in some cases. It must also appear from the foreign record that the foreign courts of probate had jurisdiction in some way of the proceeding; otherwise the record itself is a nulHty."" It has been held that the foreign proceedings are defective on their face and not entitled to record under this section, where it 6' § 2703, Code Civ. Pro., now § 44, ^^ § 21, Decedent Estate Law. Decedent Estate Law ; Lynes v. 69 Estate of Langbein, 2 N. Y. Civ. Townsend, 33 N. Y. 558, 561; White Pro. Rep. 226, i Dem. 448; Bradley V. Howard, 46 id. 144, 159; Estate of v. Krudop, 128 App. Div. at p. 202; Shearer, i N. Y. Civ. Pro. Rep. 45s ; Matter of Law, 56 id. 454. Smith v. Chesebrough, 82 App. Div. w Matter of Nash, 37 Misc. 706, S78; Matter of Nash, 37 Misc. 706; 709; Lockwood v. Lockwood, Si Matter of Majot, 199 N. Y. 29, 32. Hun, 337 ; Matter of Coope, S3 Misc. And see text under §§ 23, 24, De- S09; Meiggs v. Hoagland, 41 id. 4, 7. cedent Estate Law, pp. 205, 209, w Meiggs v. Hoagland, 68 App. supra, and under § 47, Decedent Div. 182, again 80 id. 632. Estate Law, pp. 320, 326, infra. ^' Matter of Law, 56 App. Div. 454. 3o8 The Decedent Estate Law. § 44 therein appears that the will was attested by two witnesses, and that the testimony of only one attesting witness was taken on the probate; the absence of the other attesting witness being unex- plained in any way."^ But such a construction of the present stat- ute is stoutly denied;"* and it is said that if it appears on the face of the will and in the foreign probate proceedings that the will was executed in conformity with the law of this State, the copy of the foreign will and the authenticated copy of such pro- ceedings are entitled to be recorded under this section, even if the testimony of one attesting witness only was taken on s.uch foreign probate."^ But if neither the attestation clause of the foreign will, nor the foreign probate record, discloses that the will was executed in conformity with the law of this State, then the copy of the will and foreign probate proceedings can not be regarded under this sec- tion."" It was not the intention of this section to give legal effect to a foreign will of lands, in this State, in a case where as a domestic will it would be insufficient to pass title to lands."' Thus if it appears that the attesting witnesses did not sign at the request of the testator, the foreign will is ineffectual to pass title to lands in this State, and the copy thereof and of the foreign proceedings are not entitled to be recorded under this section."' If the foreign probate does not disclose the evidence of the at- testing witnesses, a mere certificate of the probate court to that end is not sufficient under this section to entitle the foreign will to be recorded under this section, unless the will is executed in compli- ance with this section."' 63 Matter of Hagar, 48 Misc. 43. Div. 200 ; Meiggs v. Hoagland, 41 M Matter of Coope, 53 Misc. 509. Misc. 4. 85 Bradley v. Krudop, 128 App. Div. " Lockwood v. Lockwood, 51 Hun, 200. Cf. Matter of Nash, 37 Misc. 337, 339. 706, when the will is defective on its '^ Estate of Shearer, i N. Y. Civ. face. Pro. Rep. 455; Matter of Nash, 37 «6 Matter of Nash, 37 Misc. 706; Misc. 706; Bradley v. Krudop, 128 Lockwood V. Lockwood, SI Hun, 337; App. Div. at p. 202; Meiggs v. Estate of Shearer, i N. Y. Civ. Pro. Hoagland, 68 id. 182. Rep. 4SS ; Estate of Langbein, 2 id. "' Matter of Nash, 37 Misc. 706. 226; Bradley v. Krudop, 128 App. § 44 Recording Foreign Wills. 309 Effect of Recording Foreign Probate of Will. When the record of the foreign will and proceedings is made under this sec- tion, such record is only presumptive evidence of the will and exe- cution thereof, in .actions or special proceedings relating to real estate.'" The record has no greater force and effect than a domestic probate of a devise of lands.'^ Ancillary Letters on Foreign Will. When ancillary letters on a foreign will may be issued, under the Code of Civil Procedure, in this jurisdiction has recently been the subject of an interesting inquiry, but one not germane to any construction of this section of this act." Cross-reference to Section 48, Decedent Estate Law. By an amendment'^ to the Decedent Estate Law,'* adding section 48 of this act, section 2514, Code of Civil Procedure, is now made ex- pressly applicable to this section.'" 'o § 44, Decedent Estate Law ; '^ § 2695, Code Civ. Pro. ; Spratt v. Lockwood V. Lockwood, 51 Hun, Syms, 104 App. Div. 232. Cf. Racke- 327; Meiggs v. Hoagland, 68 App. mann v. Taylor, 90 N. E. 552, 23 Div. 182. Harv. L. Rev. 467. '1 Estate of Langbein, 2 N. Y. Civ. '^ § 16, chap. 240, Laws of 1909. Pro. Rep. 226, 229 ; Corley v. McEl- '* Chap. 18, Laws of 1909. meel, 149 N. Y. at p. 235 ; Mellen v. '^ See below, § 48, Decedent Estate Mellen, 139 id. 210, 218; Monypeny Law. v. Monypeny, 131 App. Div. 269, 273, 274. 310 The Decedent Estate Law. § 45 § 45. Authentication of papers from another state or for- eign country for use in this state. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state as pro- vided in article seventh of title third of chapter eighteenth of the code of civil procedure or in section forty-four of this chapter, such copy must be authenticated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or hav- ing the custody of the same or of the record thereof, and the signature of a judge of such court or the signature of such officer and of the clerk of such court or officer if any; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit wills to probate or to grant letters tes- tamentary or of administration and to keep the same and records thereof; that the seal of such court or officer af- fixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this state, as pro- vided in said article or section, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a judge or the § 45 Authentication of Foreign Probate. 311 clerk of such court, or the signature of such officer, authen- ticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territo^ry, verily beheves that the signature to such certificate concerning proofs is genuine. To entitle a copy of a will admitted to probate or of letters testamentary, or of letters of administration, granted in a foreign country, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state, as provided in said article or section, such copy must be authenticated in the manner prescribed by the laws of such foreign country, and must be further authenticated by a certificate of a judge of a court of record or by the chief officer of the department of justice of such foreign country to the effect that such au- thentication is in conformity with the laws of such foreign country, and that the court or officer by which or by whom such will was so admitted to probate, or such letters were granted, was duly authorized by the laws of such foreign country to admit wills to probate, or to grant letters testa- mentary or of administration, and to keep the same and records thereof; and the signature and official character of such judge or court of record or of such chief officer of the department of justice shall be attested by a consular officer of the United States, resident in such foreign country, under the seal of his office ; and to entitle any certificate concerning proofs accompanying the copy of the will or of the records so authenticated, tO' be used and recorded in this state, as pro- vided in said article or section, such certificate concerning the proofs must be similarly authenticated and attested. (As amended by chapter 304, Laws of 1909.) 312 The Decedent Estate Law. § 45 As between February 17, 1909/'^ and September i, 1909, section 45 of the Decedent Estate Law was in force as originally enacted by chapter 18, Laws of 1909/^ it may be useful to give at length the text of section 45 as originally enacted in the Decedent Estate LawJ* § 45. Authentication of papers from another state or foreign country for use in this state. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state as provided in article seventh of title third of chapter eighteenth of the code of civil proceedure or in section forty-four of this chapter, such copy must be authenticated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or having the custody of the same or of the record thereof, and the signa- ture of a judge of such court or the signature of such officer and of the clerk of such court or officer if any; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit wills to probate or to grant letters testa- mentary or of administration and to keep the same and records thereof ; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this state, as provided in said article or section, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believe that the signature to such certificate concerning proofs is genuine. To entitle a copy of a will admitted to probate or of letters testamentary or of letters 's Chap. 18, Laws of 1909. '^ Chap. 13, Consolidated Laws. "Amended, chap. 304, Laws of 1909. § 45 Authentication of Foreign Probate. 313 of administration granted in a foreign country, and of the proofs or of any statement of the substance of the proofs of any such will or of the record of any such will, letters, proofs or statement to be recorded or used in this state, as provided in said article or section, such copy must be authenticated in the manner prescribed by the laws of such foreign country for the authentication of a copy of such a record or paper; and there must be annexed thereto a certificate of a consul-general, vice-consul-general, deputy-consul-general, consul, vice-consul or deputy consul of the United States residing within the country in which such will was so admitted to probate or such letters were granted, under his seal of office or the seal of the consulate to which he is attached, to the effect that such authenti- cation is regular and in conformity to the laws of such foreign country, and also that the court or officer by which or by whom such will was so admitted to probate or such letters were granted was duly authorized by the laws of such foreign country to admit wills to probate or to grant letters testamentary or of administration and to keep the same and records thereof; and to entitle any certificate concerning proofs accompanying the copy of a will, or of the record so authenticated, to be recorded or used in this state, as provided in said article or section, such certificate must be similarly authenticated and there must be annexed thereto a similar certi- ficate by a consul-general, vice-consul-general, deputy-consul-general, consul, vice-consul or deputy-consul of the United States.'' Section 45 of this act was first enacted as a law by Part II of the Code of Civil Procedure, sections 2704 and 2705, as follows : *" Section 2704. Where letters testamentary or letters of administration; granted by a court elsewhere within the United States, are, or an exempli- fied copy of the judgment, decree, or order of such a court is, proved, recorded, or otherwise used, as prescribed in this article, they or it must be authenticated by the seal of the court, and the signature of the clerk, if any, and of the chief-judge or presiding magistrate thereof. Where an exemplified copy of a will, or of proofs, or of record thereof, is recorded or otherwise used, as prescribed in this article, it must be authenticated in like manner, if the original or the records, as the case may be, remain in the court, if they are kept in the custody of a separate officer, they must be authenticated by his official seal and his signature. Where a certificate of the substance of the testimony is recorded, as prescribed in the last section, it must be made by a judge of the court, and attested by the seal thereof.^i § 2705. A certificate, under the great or principal seal of the state or territory, and the hand of the secretary of state, or other officer who has the custody thereof, must be appended to the exemplification, letters, or '9 Amended by chap. 304, Laws of *^ Repealed, § 130, Decedent Estate 1909. Law. 80 Chap. 178, Laws of 1880. 314 The Decedent Estate Law. § 45 certificate of the substance of the testimony, to the effect that the court is duly constituted; that it has jurisdiction, under the laws of the state or territory, to grant the letters, or to make the judgment, decree, or order, as the case requires; that the records or proofs exemplified are kept, pur- suant to those laws, by that court, or by the officer who authenticates the same; that the seals, appended to the exemplifications or certificates are genuine; and that the officer making the certificate verily believes that each of the signatures, attesting the exemplification or certificate, is genuine.*^ To sections 2704, 2705, the codifier (Mr. Tliroop) appended the following note in his report to the Legislature: " This and the last section are new, but in general accordance with section 952 (Code Civ. Fro.), ante. The expediency of regulating in a uniform manner the mode of authentification, when papers come from a foreign country, is obvious. The effect of these sections will be to limit this article to the records, etc.. Of a court or officer having a seal." Comment. Sections 2704 and 2705 of the Code of Civil Proced- ure of 1880 were remodeled and consolidated as one section (2704) and section 2705 was repealed by chapter 495, Laws of 1888. Section 2704 of tihe Code of Civil Procedure was thereafter again amended by chapter 603, Laws of 1897; chapter 472, Laws of 1903; chapter 347, Laws of 1905, and chapter 270, Laws of 1908. No useful purpose seems subserved by printing in full these five amendatory acts last mentioned. As finally amended by chapter 270, Laws of 1908, section 2704, Code Civil Procedure, passed in the year 1909 into section 45, Decedent Estate Law, which has been, as stated above, already once amended. We have here set out in full only the original act of 1880 (constituting .sections 2704 and 2705 of Part II, Code of Civil Procedure) and the section before and since the last amendment oi the Decedent Estate Law. This course enables the reader to see the progress and trend of the legislation on this subject. If he desire, he can resort to the Session Laws for the other amendments indicated above. The danger of simulating a foreign will and the difficulties in the authentication of the probate thereof are very great.^^ At least 82 Consolidated with § 2704, Code Civ. Pro., R. 267; Matter of Civ. Pro., by chap. 495, Laws of Shearer, i id. 455, 458; Matter of 1888. Law, 56 App. Div. 454. 82 Estate of Winnington, i N. Y. § 45 Authentication of Foreign Probate. 315 the danger of simulation is not so remote as to cause the authori- ties to relax great care in the proofs required by law in cases of foreign wills. Hence these frequent legislative amendments re- ferred to above under this section of this act. Cross-reference to Section 48, Decedent Estate Law. By an amendment** to the Decedent Estate Law,*^ adding section 48 of this act, section 2514, Code of Civil Procedure, is now made ex- pressly applicable to this section.*" s* § 16, chap. 240, Laws of 1909. '^ See below, § 48, Decedent Es- 85 Chap. 18, Laws of 1909. tate Law. 3i6 The Decedent Estate Law. § 46 § 46. Validity of purchase notwithstanding devise. The title of a purchaser in good faith and for a valuable con- sideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the prop^ erty made by the latter, unless within four years after the testator's death, the will devising the same is either ad- mitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or estab- lished by the final judgment of a court of competent juris- diction of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon con- viction of a criminal offense, for a term less than for, life; or without the state: or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the de- livery of the will to the devisee or his representative, or to the proper surrogate. Formerly Code of Civil Procedure, § 2628. : § 2628. When purchaser from heir protected notwithstanding a devise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admit- ted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or established by the final judgment of a court of competent jurisdiction of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or without the state; or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his repre- sentative, or to the proper surrogate.^' 8' Repealed, § 130, Decedent Estate Law. § 46 Purchasers Protected Notwithstanding Devise. 317 Section 2628, Code of Civil Procedure, was taken from i R. S. 748, § 3 ■■'' Section 3. The title of a purchaser in good faith and for a valuable con- sideration, from the heirs at law of any person who shall have died seized of real estate, shall not be defeated or impaired, by virtue of any devise made by such person, of the real estate so purchased, unless the will or codicil containing such devise, shall have been duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the court of chancery where the jurisdiction shall be- long to that court, within four years after the death of the testator; except. 1. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the state, at the time of the death of such testator: or, 2. Where it shall appear, that the will or codicil containing such devise, shall have been concealed by the heirs of such testator, or some one of them: In which several cases, the limitation contained in this section shall not commence, until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate.^' Comment. This section is a very important provision in the law of real property. We have seen that title to real property may pass under a devise thereof without the necessity of any probate, and that as long as such property is in the actual possesision of the devisee or his heirs at law, taking by descent, no record can be more effectual to vest the property and the property rights passing by such devise."*" This section is an efiForit to protect purchasers of real property from heirs of an owner who has devised the said property by an unprobated and unrecorded devise."^ This section 88 Mr. Throop's note to § 2628 : women ; but otherwise unchanged in " I R. S. 748, Part II, chap, i, tit. S. substance." § 3 (i Edm. 699), the last sentence, *' Amended, § 12, chap. 320, Laws remodelled, in general accordance of 1830; repealed, chap. 245, Laws of with the language used in other 1880. cases of limitation (see ex gr. ^'> Supra, pp. 293, 304. § 1201, Code Civ. Pro.) ; and by '^ See § 46, Decedent Estate Law. expunging the disability of married 3i8 The Decedent Estate Law. § 46 is a short statute of limitations, and enacted inter alia to induce devisees to probate devises or wilk of real pnoperty."^ The history of limitations of common-law actions to recover real property, prior to the independence of this State, is briefly told by Cruise."^ The present writer has furnished a note to the fifth edi- tion of " Girard on Titles," which touches briefly on the general subject of limitations of actions for the recovery of neal property.®* The modern statutes generally prescribe, in substance, that twenty years' adverse possession is a bar to any real action,®^ excluding certain disabilities by reason of infancy or other inability to sue."* The present section of this act is in reality a statute of limitations applicable to one class of titles to real property, viz., that under an unrecorded devise. The short bar of four years prescribed by this section has been applied in several cases of authority, where plaintiffs claimed in ejectment to be within the exceptions mentioned in this section, and that a failure to probate for four years, consequently, did not bar title under devises conoededly not probated within four years after testator's death. In Cole v. Gourlay it was claimed, that a failure to probate within four years after testator's death did not operate as a bar, for the reason that the will was concealed by one or more of the heirs of the testator. But the court held that four years did bar, and that the exception of concealment did not apply to a case where one or more of the devisees knew of the will and failed to bring suit to establish it."' In Fox v. Fee.it was held, that parsons claiming to be devisees under an unprobated will, but who were not in existence at the tiane of testator's death, or for many years thereafter, were not within the exceptions of this section, because if they were not in existence they could not be described as " within the age of twenty-one years." °^ Conse- 12 Corky v. McElmeel, 149 N. Y. 95 §§ 365, 366, Code Civ. Pro. at p. 236. 96 § 27S, Code Civ. Pro. 93 Dig. tit. 31, chap. II, and see 97 Cole v. Gourlay, 75 N. Y. 527. also 3 Black. Comm. 188. 98 Pox v. Fee, 24 App. Div. 314, 33 94 See Sth ed. " Girard on Titles," id. 627, 167 N. Y. 44. p. 80s. § 46 Purchasers Protected Notwithstanding Devise. 319 quently, the four years' bar applied. It appears from the report in Fox V. Fee that no devisee, so claiming under the devise, was en ventre sa mere at time of testator's death, for in that event the devisee might have been regarded as a person in esse within this section. Cross-reference to Section 48, Decedent Elstate Law. By an amendment to the Decedent Estate Law,^ adding section 48 of this act, section 2514, Code of Civil Procedure, is now made expressly applicable to this section.^ S9 § 16, chap. 240, Laws of 1909. 2 gee below, I 48, Decedent Estate ^ Chap. 18, Laws of 1909. Law. 320 The Decedent Estate Law. § 47 § 47. Validity and effect of testamentary dispositions. The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situ- ated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regu- lated by the laws of the state or country, of which the decedent was a resident, at the time of his death. Formerly Code of Civil Procedure, § 2694: § 2694. Testamentary disposition; what law governs. The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not dis- posed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.' Comment. The original of this section was new to the Code of Civil Procedure, as is shown by the note thereto by Mr. Throop, the codifier.* That it was also largely declaratory of pre-existing law is apparent. Jurisdiction. Prior to Part II of the Code of Civil Procedure, enacted in 1880, the rule that a foreign will might be ajdmitted ' Repealed, § 130, Decedent Estate law, and inserted in accordance with Law. Subd. 2 of the preliminary note to II- N. Y. Produce Exchange, 34 id. 17s, 2^ C/. § 116, Domestic Relations 178; Van Beck v. Thompson, 44 id. Law; amended chap. 154, Laws of 373; Kettel v. Baxter, 50 Misc. 48; 1910; Matter of Trimm, 30 Misc. Matter of Hopkins, 43 id.' 464; affd., 493; Matter of Ward, S9 id. 328. 102 App. Div. 458; Gilliam v. Guar- Cf. Burnes v. Burnes, 137 Fed. Rep. anty Trust Co., in App. Div. 656, 781, as to status of adopted children. afifd., 186 N. Y. 127; Matter of 25 Just. Inst. 2, 12, pr.; § 84, De- Leask, 197 N. Y. 193. cedent Estate Law. ^^ Supra, p. 360; § 85, Decedent Es- tate Law. Descent. 363 tate;^' but the evidence must be clear and positive,^' and if that person is married the other spouse should consent to the adoption.'"' Presumptions in Favor of Heirs. Heirs of the blood of dece- dents are entitled at common law to every interest in freehold es- tates, undevised or undisposed of by accident or otherwise,^^ and this rule still obtains, and, therefore, they are never disinherited by implication or without an express devise.^^ Yet the common- law rule, that lapseddevises do not fall into the residuary, but go to the heir, was done away with by the Revised Statutes.^^ Aliens. At common law no descent was cast on an alien nor had he inheritable blood.^* But this rule has been' much modified by modern statutes, and certain aUens may now take even by de- scent, where actual consanguinity exists.'' 28Godine v. Kidd, 29 Abb. N. C. 36 ; Gates v. Gates, 34 App. Div. 608 ; Brantingham v. Huff, 43 id. 414; Healy v. Healy, 55 id. 31S, affd., 167 N. Y. 572, 166 id. 624; Winne v. Winne, 166 id. 263 ; Middleworth v. Ordway, 191 id. 404; Doppman v. Muller, 137 App. Div. 82. 29 Merchant v. White, 37 Misc. 376, affd., ^^ App. Div. 539 ; Mahaney V. Carr, 175 N. Y. 454; Holtv. Tuite, 188 N. Y. 17. 3" Middleworth v. Ordway, 49 Misc. 74, 81, 117 App. Div. 913, 191 N. Y. 404. 31 1 Roper & White, Legacies, 516. 32 Fowler's Real Prop. Law (3d ed.), 241; Oakes v. Massey, 94 App. Div. 165; Matter of Butler, 66 Misc. 406; Read v. Williams, 125 N. Y. 560, 571 ; Pomroy v. Hicks, 180 id. 73 ; Adams v. Massey, 184 id. 62, 69. 33 Fowler' Real Prop. Law (3d ed.), 467, note 40; Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Allen, 151 id. 243. 34 Mooers v. White, 6 Johns. Ch. 360, 365, and see Fowler's Real Prop. Law, (3d ed.), 125. 36 § 10, Real Prop. Law ; Haley v. Sheridan, 190 N. Y. 331, and see Fowler's Real Prop. Law (3d ed.), , 125, 127, 131, 134. 139- / 364 The Decedent Estate Law. § 82 § 82. Lineal descendants of equal degree. If the intestate leave descendants in the direct line of lineal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts however remote from him the common degree of consanguinity may be. Formerly § 282, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 282. Lineal descendents of equal degree. — If the intestate leave de- scendents in the direct line of lineal descent, all of equal degree of con- sanguinity to him, the inheritance shall descend to them in equal parts how- ever remote from him the common degree of consanguinity may be.^ § 282 was formerly I Revised Statutes, 751, § 2: § 2. If the intestate shall leave several descendents in the direct line of lineal descent, and all of equal degree of consanguinity, to such intestate, the inheritance shall descend to such persons in equal parts, however remote from the intestate the common degree of consanguinity may be.^' Rule I of Descents. This section of the Decedent Estate Law makes no change in the corresponding section of the Revised Statutes, just set out above. The Revised Statutes in this particu- lar had not enlarged^^ the scope of the act of 1786, referred to under the preceding section of this act.'*" The rule expressed in this section is now called the " Fir st Rule of De scents " *" from its original position in the act of 1786.*^ It is referi^d to above, in the text, as the rule changing within certain degrees impartible to part- ible inheritances and abolishing primogeniture.*- Yet, at common law, not all inheritances were impartible, for" in case there were no male descendants, the female descendants of equal degree took as coparceners,*' and consequently the act of 1786, in order to am- plify the intent of the act by familiar illustration, provided that all lineal descendants of equal degree should take in the same manner 56 Repealed by § 130, Decedent Es- ^^ Supra, p. 351. tate Law. *" Original edition of I Revised s' Repealed by chap. S47, Laws of Statutes, p. 751, footnote I. 1896, The Real Prop. Law, art. 10. *^ Supra, p. 355. 38 1 R. S. 753, i 17. now § 94, De- *2 Supra, p. 350. cedent Estate Law. *^2 Black. Comm. 187. § 82 Descent. 365 " as if they were all daughters of the " intestate. But as parceners held more as joint tenants than as tenants in common, the~k"evisea Statutes saw fit to omit this illustration contained in the act of 1786. In essentials, the Revised Statutes only enlarged the sicope of " Rule I of Descents," as formulated in 1782** in New York, and perpetuated in 1786.*^ While this rule of pantible inheritances seems, novel, it is highly probable that it was but a return to Saxon institutions, for before the " Conquest," the descent |of all, or .nearly all, the lands in England was' according to the custom of gavelkind, which prescribed equal partition among the male children of an fn- testate.** The existing limitations on the rule of partible inherit-i ances are subsequently mentioned.*^ Children. By this first rule of descents, all lineal descend- ants,** male and female alike, in the same degree of descent from the common ancestor, take equally and per capita, as tenants in common. Thus, if intestate leave three c'hildren, A. and B., males, and C, a female, each child takes one- third of tha inheritance.** Grandchildren. So, if intestate leave all grandchildren, but no children, all the grandchildren (each being in the same degree of descent from the grandparent) take equal shares, or per capita, and as tenants in common. Thus, if intestate leave four grand- dhildren by his son A., deceased, and one grandchild by ihis son B., deceased,^" each grandchild takes one-fifth of the inheritance.^^ Great-grandchildren. If intestate leave all great-grandchil- dren and no children or grandchildren, the great-igrandchildren do not take the share of their respective immediate ascendant, but '^i Supra, p. 350. -is i R. S. 753, § 17; now § 94, De- 45 Supra, p. 351. cedent Estate Law. ^^ Leges Gulielmi, 225; Hallam, so 4 Kent Comni. 375; Pond v. Mid Ages, I, 129. In some cases all Bergh, 10 Paige, 140, 148. children shared alike. Cf. 2 Holds- 61 (Intestate.) worth. Hist. Eng. Law, 80; 2 P. & * 1 M. 258, 259. I ■*' See below, under § 92, Decedent A. (deed. son). B. (deed. son). Estate Law. | I *8 Legitimate is meant. See under a' | a" | a'" | a"" I I b' § 89, Decedent Estate Law. 1234 5 366 The Decedent Estate Law. § 82 all share equally in the inheritance of the common ancestor, being equal in degree of consanguinity from intestate/'^ Adopted Children. Adopted children now take by descent from parents by adoption.^' 62 4 Kent Comm. 375 ; Pond v. Bergh, 10 Paige, 140, 148; Remsen, Intest. Success. 42. Cf. Adams v. Smith, 20 Abb. N. C. 60, 62. 63 Matter of Cook, 187 N. Y. 253, 261, and see "JCBSVS uiiTder" § 81, Decedent Estate Law; and § 114, The Domestic Relations Law, which is set out in full on pp. 359, 360, supra^ The Domestic Relations Law is ex- press and clear, in that it confers the right of inheritance from adoptive parents on children by adoption. § 83 Descent. 367 § 83. Lineal descendants of unequal degree. If any of the de- scendants of such intestate be Hving, and any be dead, the inheritance shall descend to the living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living ; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestors would have received. Formerly § 283, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 283. Lineal descendents of unequal degree. — If any of the descend- ants of such intestate be living, and any be dead, the inheritance shall descend to the living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the. descendants who shall have died shall respectively take the shares which their ancestors would have received.^* § 283 was formerly i Revised Statutes, 751, §§ 3 and 4: § 3. If any of the children of such intestate be living, and any be dead, the inheritance shall descend to the children who are living, and to the descendants of such children as shall have died; so that each child who shall be living, shall inherit such share as would have descended to him, if all the children of the intestate who shall have died leaving issue, had been living; and so that the descendants of each child who shall be dead, shall inherit the share, which their parent would have received if living.55 § 4. The rule of descent prescribed in the last section, shall apply in every case where the descendants of the intestate, entitled to share in the inheritance, shall be of unequal degrees of consanguinity to the intestate; so that those who are in the nearest degree of consanguinity, shall take the shares which would have descended to them, had all the descendents in the same degree of consanguinity, who shall have died leaving issue, been living; and so that the issue of the descendants who shall have died, shall respec- tively take the shares, which their parents, if living, would have received.ss 5* Repealed by § 130, Decedent Es- ^^ Repealed by chap. 547, Laws of tate Law. 1896, The Real Prop. Law, art. 10. 55 Repealed by chap. 547, Laws of 1896, The Real Prop. Law, art. 10. 368 The Decedent Estate Law. § 83 History of this Section. The archetype of this section of the Decedent Estate Law was derived indirectly from the second canon of descents in the act of 1782,°^ revised in 1786." , 58 Interpretation of this Section; Rul e II of D escents. This sec- tion contains the second rule of descent, that surviving lineal de^ scendants of the same degree take per capita, as between them- selves, and that the issue or the descendants of such of ithat degree as are dead take the share of their immediate ancestor per stirpes inter se, or, in other words, take by representation, jure reprcesen- tationis.^^ Thus, if intestate leave a son and also two children of a deceased daughter, the son will take an undivided one-'half, and the daughter's two childreni will each take a moiety of the oither undivided one-half, and these three heirs-at-law will then hold as tenants in common, until sale or partition.*" The rule stated in this section is known from; its numbering in the acts of 1782 and 1786, as the " Second Canon or Rule of Descents." "^ ■ Adopted Children. Adopted children of a deceased descend- ants will hardly be let into an intestate succession under this section of the Decedent Estate Law.*" But the adopted children of an in- testate will share,*^ subject no doubt to tihe rule stated in section 90 of this act. Children Legitimated per Subsequens Matrimonium. Cer- taiin illegitimate children, though formerly not regarded as entitled to share in an intestate succession, now are by statute rnade com- pietent as heirs after the intermarriage of 'their parents.** 6' Laws of 1782, chap. 2, supra, p. 62 See under § 81, Decedent Estate 350- Law, and § 114, Dom. Rel. Law, 58 Laws of 1786, chap. 12, supra, p. supra, pp. 359, 360 ; M atter of H op- 351- kins, 43 Misc. 464, 102 App. DivT^SSr 63 See Adams v. Smith, 20 Abb. N. «3 Laws of 1896, chap. 272"; T^aT C. 60, note at pp. 61, 62 for definition Dom. Rel. Law, supra, p. 360. of representation. " 64 § gg, Decedent Estate Law; 60 4 Kent Comm. 390; Rems. Intes. Dom. Rel. Law, § 24; Smith v. Lan- Suc. 40; Pond V. Bergh, 10 Paige, sing, 24 Misc. 566. See below under 140, 148. § 89, DeceaSirEstate Law. 61 4 Kent Comm. 390. § 84 Descent. 369 § 84. When father inherits. If the intestate die without law- ful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee. Formerly § 284, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 284. When father inherits.— If the intestate die without lawful de- scendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee.^^ § 284 was formerly i Revised Statutes, 751, § S, as amended by chapter 320, Laws of 1831, § 13: § 5. In case the intestate shall die without lawful descendants, and leav- ing a father, then the inheritance shall go to such father, unless the inher- itance came to the intestate, on the part of his mother.^^ § 13. In case the intestate shall die without lawful descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate, on the part of his mother, and such mother be living; but if such mother be dead, the inheritance descending on her part shall go to the father for life and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by Collateral relatives hereinafter provided; if there be no such brothers or sisters, or their descendants living, such inheritance shall de- scend to the father in fee. (Laws of 1830, chap. 320, § 13.)*' 85 Repealed by § 130, Decedent Es- «' Repealed, chap. 547, Laws of tate Law. • 1896, by repeal of R. S. 86 Amended, § 13, chap. 320, Laws of 1830. 24 370 The Decedent Estate Law. § 84 History of this Section. This section is derived, through the Revised Statutes/' from the act of 1786/° not being contained in the act of 1782.'"' Rule III of Qfiscents. Combined with the next succeeding- section of this act, this section forms the " Third Rule of De- scents, " '^ whereby preference is given to parents over collaterals of intestate. It is to be observed that under this '" Third Rule," the old preferencefor males to f emaks^^ still survives to a limited extent in" the~law. A like succession of parents to children is said by Kent to have; been regarded as impolitic by the Roman law, it being contrary to the law of nature.''^ It cannot be denied that there may be valid arguments adduced against this order of suc- cession now so well established in this State ; '* for it tends in some few instances to possible neglect by the father of enriched children, and, in rare cases, possibly, even to infandcide. Yet, in. England, this rule was older than the feudal settlement, for ia Saxon times, and even as late as the reign of Henry I, the father might inlierit from the son.'^° The reason wihy, by the subsequenit common or feudal law, a father did not succeed to his son's es- tate, was in all probability purely feudal or military,"' the maxima "hcereditas nunquam ascendit," being only tne result of a legal fiction that the father had already enjoyed the esta.te.''^ Writers on the origin o'f this particular rule of the common law find it very (perplexing, as at times there are evidences that the father did in- (herit from the son, and the reasons assigned by Blackstone for the common law against such a succession are not always accepted. That the rule became a substantive rule of the common law is not, 'however, denied.^* ^^ Supra, p. 369; I R. S. 7SI, § S- '* Matter of Hohman, 37 Hun, 250 ; as amended, Laws of 1830, chap. 320. Morris v. Ward, 36 N. Y. 587. ^^ Supra, p. 350. 'sHallam, Mid. Ages, I, 129 j 10 Supra, p. 3SI. Tomlins' Lyttleton, 298, citing Hale. w 4 Kent Comm. 393 : Torrey v. ^6 Supra, pp. 352, 356. Shaw, 3 Edw. Ch. 356, 360. " Glanvill, lih. 7, chap, i ; Bracton, ^' Supra, p. 352. f. 626; 2 Black. Comm. 211, 212. " 4 Comm. 397, citirg Just. Inst. '82 P. & M. 284-293 ; 3 Holds- Si 3- worth, Hist. Eng. Law, 143. § 84 Descent. 371 When Father Does not Inherit. The rule that the heir must be one who is related by blood kinship, not only to the propositus but to the stock from which the property came is widely distributed in the succession laws of various countries. In the common law. the older maxim, " paterna paternis, mater maternis " was fully recognized.^' The revisers of the Revised Statutes gave expres- sion to it in the original of this section of the Decedent Estate Law, and for abundant precaution they defined what they intended by the expressions " on the part of the father," or " on the part of the (mother." Inheritances Coming to Decedent Ex Parte Materna do not Descend to, or Devolve on, the Father. What the revisers of 1786 meant by the expression " on the part oif Hs mother " when they provided " that the inheritance shall go to such father, unless ■the inheritance came to the intestate, on the part of his mother " '^ seems to have been regarded at first as very debatable.*^ If we turn then to the act of 1786, first permitting fathers to inhe'rit we shall find that the father was excluded in case the in- heritance came to his child " on the part of his or her mother." "* There can be no doubt that this expression was a mere translaition of the common-law term "ex parte materna," which in the com.- monj law of collateral descents had a well defined tedinical mean- ing.°* Under esitablished principles of construction the same phrase, used appropriately in a Statute of Descents in this State, would be taken in its common-law meaning, unless the statute it- self indicates that it is to be taken otherwise.*" Unfortunately, at "2 P. & M. 297; 3 Holdsworth, Righter v. Ludwig, 39 Misc. 416; Hist. Eng. Law, 147. Beebee v. Griffing, 14 N. Y. at p. 8» I R. S. 7SS, § 29, now § 80, De- 244. cedent Estate Law, and see Beebee v. 83 Chap. 12, Laws of 1786. Griffing, 14 N. Y. at p. 244. • s^Watkins, Descents, chap. V; 2 siLaws of 1786, chap. 12, repealed Black. Comm. 222, 234; Williams in I R. S. 751, § 5, now § 84, Dece- on Seisin, 60, 61 ; Crabb. Real Prop, dent Estate Law. § 2400. 82Torrey v. Shaw, 3 Edw. Ch. 356, 85 Pgrkins v. Smith, 116 N. Y. 441; 361. Cf. Morris v. Ward, 36 N. Y. Fowler's Real Prop. Law (3d ed.), 587; Adams v. Anderson, 23 Misc. 94. 70s ; Hyatt v. Pugsley, 33 Barb. 373 ; 372 The Decedent Estate Law. § 84 common law in connection with inheritance by fathers from chil- dren this expression could have no exact technical force or mean- ing,** for by the common law an inheritance newer ascended and the expression ex parte materna, therefore, could have had no application whatever to inheritance by the father from his children. Such an expression was employed at common law only in con- nection with collateral inheritances. In that region of the law of descents, ex parte materna, like the term " possessio fratris," had an exact technical meaning, and a son took " ex parte materna " only when he took by descent as heir to his mother. Whenever at common law a son took an inheritance by purchase, even from a maternal ancestor, he took it as purchaser, and he did not then in law take it ex parte materna?'' But if a son at com^mon law took -by descent, as heir to his mother, and he was seised and died intestate it was necessary for collaterals to go back to the pur- chaser, as the inheritance then descended to the collateral relations of the person last seised, being of the blood of the first purchaser.*' This nule of collateral inheritance was nothing else than an ex- pression of the larger rule, " paterna paternis, materna maternis." It is doubtful whether the latter rule was a rule of feudal origin, or a very proper attempt to keep a woman's iproperty in her own famiily, but it is often said to be feudal.*" Feudalism answers for many sins when more definite origin is conjectural. Tlie first case in this State in Avhich the meaning " on the part oi the mother " in the act of 1786 appears to have come under consideration of the courts, is Torrey v. Shaw"" (1839), when the Vice-Chancellor refused to restrict the expression inheritance " on the part of the mother " to the narrower common-law meaniing of an inheritance acquired by the intestate by descent as the mother's heir. In Tor- rey V. Shaw it appears that the property camie to the propositus by devise from the miother's father, and at common law, unless the devisee was heir to the grandfather (which is not in the case), 86 Torrey v. Shaw, 3 Edw. Ch. at 89 See Hyatt v. Pugsley, 33 Barb. P- 361. at p. 376. 8' Watkins on Descent, 147. so 3 Edw. Ch. 356. 88 Williams on Seisin, 60 ; 2 Black. Coram. 222, 234. § 84 Descent. 373 lie clearly took as purchaser.'^ The Vice^Chanoellor said in sub- stance that he thought the expression in the statute " on the part of the motiher " had a larger meaning than at comimion law and that it (meant when property came by gift or devise from some of her side of the house ("as distinguished from the father's side") ; and the Viice-Chancellor accordingly decreed that tihe propenty having come by devise from the mother's father to the intestate Robert Shaw, his father, William Sha'W, was not the heir of Robert under the terms of the statute. A little reflection, on the part of the reader, will enable him to perceive thait the doctrine of the Vice-Qiancellor was a mere recru- descence of the old maxim, which antedated feudalism, " paterna paternis, materna maternis." The Vice-Chanicellor evidently thought, on general principles, that real property which came from the mother's side, or e converse, should not go to alien blood. This decision was in line not only with natural equity but with the doctrines of most countries of Europe on the same subject"^ and it is in exact accord with the action of the revisers of the Revised Statutes, when they defined the meaning of the words " on the part of the mother " or " on the part of the father " in the Revised Statutes. The revisers there say in substance, that an estate shall be construed to come on the part of the father or mother when- ever such inheritance shall come to the intestate by devise, gift or descent from the parent referred to, or from any relative of the blood of onie parent.'^ The revisers of the Revised Statutes evidently intended thereby to give the widest statutory application to the old doctrine, "paterna paternis, materna maternis.^^ At the present day, under the Revised Statutes and its several unchanged re-enactments, an estate comes to an intestate " on the part of his mother " when it is derived by such intestate not only 91 2 Black. Comm. 241 ; Stamm v. or Fallrecht, Stobbe, Privatrecht, p. Bostwick, 122 N. Y. 48; Vanderhey- 103. den V. Crandall, 2 Den. 9, 24. Cf. ss j r g 755, § 29, now § 80, De^ Hyatt V. Pugsley, 33 Barb, at top of cedent Estate Law. p. 377. '* See Ferry v. Dunham, 136 App. 92 Jus revolutionis, jus recadentiae, Div. 61. 374 The Decedent Estate Law. § 84 from her, but from any relative exclusively of her blood,"' by devise,"' gift" or descent."* But where an intestate received «ioney__^2I3-^ mother as a gift, and invested it in land, it was held, under the old law, that the land did not come to him " on the part of the mother," and that the land descended as if it had been originally purchased {de novo) by the intestate himsielf.''* So if intestate aicquire the estate for a valuable consideration from his mother or her family, then it is an acquisition by original pur- chase, and not an estate derived "ex parte materna" within the meaning of this section of the Decedent Estate Law.^ The old common-law rule, that collateral descent, for the pur- pose of preserving inheritances in the blood of the purchaser, is to be traced from the person last seised being of the blood of the first purchaser, has been repudiated by late cases ; ^ and yet, as interpreted at common law, it was a rule very well calculated to give application to the old canon, " paterna paternis, materna maternis," and to preserve inheritances in the descendants of those whose industry or talent first acquired them. It can hardly be doubted that this rule of the Revised Statutes was intended in some degree to favor the blood of the last purchaser to the exclusion of those not of that blood.^ ^ If Mother be Dead, Father Takes Life Estate. If the mother be dead, and intestate has collateral kindred, the inlieriitance which came to intestate " on the part of intesitate's mother," devolves on the father for life; always provided intestate leaves no lineal de- 55 § 84, Decedent Estate Law ; 655 ; Eighter v. Ludwig, 39 Misc. Ramsen, Intestate Succession (4th 416; Wells v. Seeley, 47 Hun, 109. ■ed.), 28; Morris v. Ward, 36 N. Y. «' Champlin v. Baldwin, I Paige, 587. Cf. Righter v. Ludwig, 39 562. Cf. Adams v. Anderson, 23 -Misc. 416. _ Misc. 70s, 709, 85 § 80, Decedent Estate Law, subd. 1 Morris v. Ward, 36 N. Y. 587, 2; Morris v. Ward, 36 N. Y. 587, 594. See an interesting case on this 593; Torrey v. Shaw, 3 Edw. Ch. point; Ferry v. Dunham, 136 App. 356, 361; Adams v. Anderson, 23 Div. 61. <^w Misc. 705. 2 Hyatt v; Pugsley, 33 Barb. 373, " § 80, Decedent Estate Law, subd. 375. s; Morris v. Ward, 36 N. Y. 587. s i r. g. 751, § 5, now § 84, De- 88 § 80, Decedent Estate Law, subd. cendent Estate Law ; Knowlton v. 2; Torrey v. Shaw, 3 Edw. Ch. 356. Atkins, 134 N. Y. 313, 321; Wheeler Cf. Valentine v. Wetherill, 31 Barb. v. Clutterbuck, 52 id. 67. § 84 Descent. 375 scendants.* The " reversion," in such case, vests in the collaterals of intestate according to rule IV," and if tliere be none such, then the father takes the inheritance in fee." A reversion vests on the death of an intestate and is not now suspended during the inter- vening life estate.' Father Inherits, When. The father inherits from his child if the property was a new purchase by his child, or derived ex. parte paterna.^ Adopted Children. Fathers may inherit from adopted chil- dren under recent laws.' This section of the Dece3ei5r"EState Law may consequently cause embarrassment in cases where the inheritance of the adopted came to him on the pant of his natural mother and not his adoptive mother. The legislation in regard to adoption musit be very much supplemented to constitute a com- plete code of reciprocal rig'hts, duties and obligaitions. It is now singularly incomplete. J Legitimated Children. The father may also inherit from chil- dren made legitimate by a subsequent marriage of parents.^" Ascendants beyond Grandfather and Grandmother. Ascend- ants beyond grandfather and grandmother are not let into an intes- tate succession by the present New York law,^^ except possibly in * Laws of 1830, chap. 320, § 13, s Matter of Holman, 37 Hun, 250, supra. 254. ^ Infra, §§ 86, 87, Decedent Estate 'i 114, Domestic Relations Law. Law. See above pp. 359, 360, under § 81, * § 84, Decedent Estate Law ; Mor- Decedent Estate Law. Tis V. Ward, 36 N. Y. 587 ; Fowler v. 1° See below under § 89, Decedent Ingersoll, 127 id. 472, 476. Estate Law. ' Barber v. Brundage, £0 App. Div. i* 4 Kent Comm. 407. Cf. chap. I29,__aff^„*»69 N. Y. 368; § 59, Real 106, Laws of 1904, amending § 288, Prop. Law. Cf. Jackson v. Hen- The Real Prop. Law, now § 88, De- drick, 3 Johns. Cas. 214; Jackson v. cedent Estate Law. Hilton, 16 id. 96; Lese v. Miller, 71 App. Div. 19s, as to contingent re- mainders. 376 The Decedent Estate Law. § 84 conformity w^vt^e common law,^^ and after all collaterals speci- fied in this act^' are exhausted. Grandparents. Prior to March 22, 1904, grandparents were not such ascendants as were specifically entitled by statute to in- herit, in default of those specified in section 81 of this act. But this has now been changed by a recent statute.^* 12 § 91, Decedent Estate Law; 2 "4 Kent Comm. 407; chap. 106, P. Wms. 613. Laws of 1904; and see below, § 88, "§§ 87, 88, Decedent Estate Law. Decedent Estate Law. § 85 Descent. 377 § 85. When mother inherits. If the intestate die without de- scendants and leave no father, or leave a father not entitled to take the inheritance under the last section, and leave a mother, and a brother or sister, or the descendant of a brother or sister, the inheritance shall descend to the mother for life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the intestate in such case leave no brother or sister or descendant thereof, the inheritance shall descend to the mother in fee. Formerly § 285, The Real Property Law (chap. 46, General Laws), chap. S47, Laws of 1896: § 28s. When mother inherits. — If the intestate die without descendants and leave no father, or leave a father not entitled to take the inheritance under the last section, and leave a mother, and a brother or sister, or the descendant of a brother or sister, the inheritance shall descend to the mother for life, and the reversion to such brothers and sisters of the in- testate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the in- testate in such case leave no brother or sister or descendant thereof, the inheritance shall descend to the mother in fee.^^ § 28s was formerly i Revised Statutes, 752, § 6: § 6. If the intestate shall die without descendants and leaving no father, or leaving a father not entitled to take the inheritance under the last pre- ceding section, and leaving a mother, and a brother or sister, or the descend- ant of a brother or sister, then the inheritance shall descend to the mother during her life, and the reversion to such brothers and sisters of the intes- tate as may be living, and the descendants of such as^ may be dead, accord- ing to the same law of inheritance hereinafter provided. If the intestate in such case, shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee.i' Some Account of Section 85, Supra. This section, as that prece'ding, forms a part of " Rule III of Descents." The adrnis- 15 Repealed by § 130, Decedent Es- is Repealed by chap. S47. Laws of late Law. 1896. 378 The Decedent Estate Law. § 85 sion of the mother into the line of succession from an intestate who leaves no lineal descendants was an innovation of the Revised Statutes." It did not, like the rule of paternal succession, origi- nate witii the act of 1786.^^ When Mother Takes a Fee. The instances where the mother takes a fee under this section include the case where the inheritance came to her intestate son from an ancestor, and such intestate leaves a brother or sister of the half blood, not of the blood of such ancestor, and excluded under section 90 of this act.^° When Mother Takes a Life Estate. Under this section, if an intestate leave only brothers and sisters or their descendants, no father or a father not entitled to take, and a mother, .the mother takes a life estate only.-" But if there are no such collaterals the mother takes in fee.^^ When intestate leaves a mother and brothers or sisters, or their descendants, one or more, the reversion vests in the collaterals at the death of intestate, and descent is not susipended during the life of the mother.^^ Inheritance from Adopted Child. By recent legislation a mother by adoption may inherit from her adopted child.^' But the legislation on this subject of inheritance from adopted children is so incomplete as to make this section of the Decedent Estate Law difficult to apply in cases of intestate succession by adoptive 1' Note of Revisers, i R. S. 752, Misc. 506, 107 App. Div. 17, igo N. § 13; infra, Appendix II. Y. 330; McCormack v. Coddington, IS Chap. 12, Laws of 1786, supra, p. 46 Misc. 510, 109 App. Div. 741, 184 355- N. Y. 467; Tucker v. Tucker, 122 19 Wheeler v. Clutterbuck, 52 N. Y. App. Div. 308. 67 ; Conkling v. Brown, 8 Abb. Pr. 21 Canfield v. Fallon, 26 Misc. 345 ; (N. S.) 345 ; s. C, 57 Barb. 265. § 85, Decendent Estate Law. 20 Supra, § 85, Decendent Estate 22 Barber v. Brundage, 50 App. Law; Tilton v. Vail, 17 Civ. Pro. Div. 123, affd., 16 9 N. Y . 368; §59, Rep. 194, 199; Miller v. Macomb, Real Prop. Caw: " 26 Wend. 229; Berger v. Waldbaum, 23 § 114, Domestic Relations Law, 46 Misc. 4; Haley v. Sheridan, 46 supra, p. 360. § 8s Descent. 379 mothers." If the inheritance came to intestate from his natural parents one set of arguments applies : If .the estate was the result of his O'wn frugality, another set of arguments may be made to govern the succession. But where the estate came to intestate from the adoptive family it ought certainly to revert to the mem- bers of that family.^" The legislation in New York offers, how- ever, imperfect solution of such cases. Inheritance from Legitimated Offspring. The mother may also inherit under this section from those of her offspring who were legitimated by her subsequent marriage with their father." Inheritance from Illegitimate Children. The mother may also inherit from her illegitimate offspring, not legitimated; but this is pursuant to section 89 of this act.-^ 2< Supra, p. 377. 28 See below, under § 89, Decedent 25Knowlton v. Atkins, 134 N. Y. Estate Law. 313. 321 ; Wheeler v. Clutterbuck, 52 27 See below, § 89, Decedent Estate id. 67. Law. 380 The Decedent Estate Law. § 86 § 86. When collateral relatives inherit; collateral relatives of equal degree. If there be no father or mother capable of inheriting the estate, it shall descend in the cases herein- after specified to the collateral relatives of the intestate; and if' there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall de- scend to them in equal parts, however remote from him the common degree of consanguinity may be. Formerly § 286, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 286. When collateral relatives inherit; collateral relatives of equal degrees. — If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of con- sanguinity may be.^^ § 286 was formerly i Revised Statutes, 752, § 7: § 7. If there be no father or mother, capable of inheriting the estate, it shall descend, in the cases hereinafter specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate, the common degree of con- sanguinity may be.^? Account of the Legislation Embodied in Section 86. By the common law, collateral relations inherited on failure of lineal de- scendants of an intestate ; the eldest male being always preferred under the rule of primogeniture.'" The commonJaw scheme of determining what collaterals inherit was a parentelic scheme and not a gradual scheme. Under the parentelic scheme the stock of each male ancestor was exhausted before proceeding to the next.'* But the maxim, " paterna paternis, materna maternis," was fully 28 Repealed by § 130, Decedent Es- so Supra, p. 352, under § 81, De- tate Law. cedent Estate Law. 2S Repealed by chap. S47, Laws of 'I2 P. & M. 293. 1896, The Real Prop. Law, art. 10. § 86 Descent. 381 recognized by the common law in all collateral successions.^^ By the New York act of 1782,^^ as amended in 1786,"* an inheritance of intestate, failing lineal descendants and father, went to his brothers and sisters in equal parts, and to the children of deceased brothers and sisters; the latter taking the share of their respective parents, jure reprcesentationis or per stirpes.^^ If there were no surviving brothers and sisters of intestate, still their children in every case took the inheritance per stirpes and not per capita, al- though such children all stood in equal degree from the intestate.^® This rule the Revised Staitutes changed,^'^ so as to make it conform to the corresponding rule applicable to lineal descendants of the same degree.^* The act of 1786 did not provide for collateral succession, beyond brothers' and sisters' children. ^^ The Revised Statutes extended the succession to the remotest descendants of such brothers and sisters.*" Changes made by the Revised Statutes. The modifications in the act of 1786, introduced by the Revised Staitutes, not only per- mitted collaterals beyond brothers' and sisters' children to take, but provided that they should take per capita and not per stirpes, whenever there was no surviving collateral kinsman of nearer degree to intestate.*^ Thus, by the Revised Statutes, when intes- tate left surviving hiim only two sons of a deceased brother and' one son of a deceased sister, and no other heirs, the three nephews took equal shares of the inheritance, as all stood in equal degree from intestate. Tliis rule prevailed to the remotest degree of collaterals, and this act makes no change in this canon. By the amendment to the act of 1786, mentioned above,*- brothers and sisters of the half blood share, unless the inheritance came to intestate from an ancestor not of their blood.*^ 32 2 P. & M. 297. "I R. S. 752, §§ 7, 8 and 9. 53 Chap. 2, Laws of 1782, supra, p. ^8 § g2, Decedent Estate Law. 350. 39 Hannan v. Osborn, 4 Paige, 336 ; ^ Chap. 12, Laws of 1786, supra, Pond v. Bergh, 10 id. 140, 148. p. 351- *" Id., supra. 35 Pond V. Bergh, 10 Paige, 140, *i See note of revisers to chap. II, 148. R. S., Appendix No. II, infra. 36 Jackson ex dem., etc. v. Thur- *^ Supra, p. 355. man, 6 Johns. 322. 43 § go, Decedent Estate Law. 382 The Decedent Estate Law. § 86 Rule IV of B fiscents. Rule IV, then, concerns the succesision of certain collateral kindred. In its entirety it is only partly ex- pressed in this secton of this act — the other and more innportant branch of it being reserved for the next two sections of the Dece- dent Estate Law.** Rule IV of Descents as combined in these sections is, that where collaterals all stand in equal degree, how- ever remote from intestate, they shall share the inheritance equally and not jure reprcssentafionis.*^ But when such collaterals stand in unequal degree of consanguinity to intestate, the succession among them is then jtire reprcesentationis or per stirpes.*^ Col- lateral descent, under the Revised Statutes, it is said, presents a very great similarity to succession under the Roman law as re- modeled by Justinian.*' Collateral Succession. The extent of collateral succession*' is now a matter of State regulation, juris positivi; die common law being displaced here, in practice, to a great extent.** The col- laterals who are entitled to take by intestate succession, imder the law of New York, are (i) brothers and sisters and their descend- ants,^" (2) uncles and aunts and their descendaiits, to the remotest degree.*^ In all such cases, " Rule IV of Descents " °^ applies to the succession to the inheritance and they take as tenants in common.''^ Beyond uncles and aunts and their descendants, the common-law rules still prevail.^* When Collaterals are "Descendants." While collaterals are not " descendants " within the meaning of our Statute of Wills,^* **§§ 87, 88, 93, Decedent Estate *» Supra, p. 346. Law. *9C/. § 91, Decedent Estate Law. *E Hyatt V. Pugsley, 33 Barb. 373, 5" § 87, Decedent Estate Law. 377; s. C, 23 id. 28s, 301; Kelly v. ^188, Decedent Estate Law. Kelly, S Lans. 443, 446; § 93, De- ^^ Supra, p. 382. cedent Estate Law. ^^ § 94, Decedent Estate Law. *6 4 Kent Comm. 400 ; § 87, De- ^^ § 92, Decedent Estate Law ; cedent Estate Law ; Pond v. Bergh, Hunt v. Kingston, 3 Misc. 309. ID Paige, 140, 148 ; Matter of Daven- ^5 Van Beuren v. Dash, 30 N. Y. port, 172 N. Y. 4S4, 459. 393; Howard v. Barnes, 65 How. Pr. ^'Nov. 118, 127; 4 Kent Comm. 122. 391, sed cf. p. 346, supra. § 86 Descent. 383 they certainly are within the meaning of many phrases of this article of this act.^" Section Incomplete. The rules respecting inheritances by collaterals is only partly expressed in this section, and it is neces- sary to have reference to other sections of this act to make it intelligible." Collateral Consanguinity. The various methods of ascertain- ing collateral consanguiinity at common law have been more clearly explained by Blackstone than by any other familiar writer ;^^ so clearly that Watkins, in his Treatise on Descents, confined to that single tO)pic, refuses to go over the ground.^® In reference to real property the commion law of England is said to follow the gradual system of the canon law, rather than that of the civil law, in com- puting the degrees of collateral consanguinity.®" The Civilians took the sum of the degrees in botih lines to the common ancestor; the Canonists took only the nimiber of degrees in the longest line.®^ Hence, for example, when the canon law prohibited all marriages between persons related to each other in the seventh degree it would restrain all marriages within the 14th degree of the civil law.*^ The common-law rules of descent do not, however, as Mr. Christian noted, seem to depend on tlie gradual scheme, but, as Professor Maitland pointed out, on the parenteHc.®^ It is other- wise with the Statute of Distributions,** where the method of the Civilians seems to be preferred to that of the Canonists.®'' 56 Cf. Conkling v. Brown, 8 Abb. Christian's note, yet Mr. Christian Pr. (N. S.) 350, note; §§ 87, 88, 90, said he did not know a single in- Decedent Estate Law; McCarthy v. stance in which we have occasion to Marsh, 5 N. Y. 263 ; Wheeler v. Glut- refer to it. See below, under § 98. terbuck, 52 id. 67. By chap. 106, ^i Hargrave, Note 142, Co. Litt. Laws of 1904, grandparents are 236. treated as " descendants," for the '^ 2 Black. Comm. 208, note, estate " descends " to them ; see § 88, «' 2 P. & M. 293 ; 3 Holdsworth, Decedent Estate Law, subd. 5. Hist. Eng. Law, 145. 6T§§ 81, 87, 88, 90, 93. 64 See above p. 347, and also see 68 2 Black. Comm. 208, note. text under § 98, infra, and Sweezey M Watkins on Descents, 90. v. Willis, i Bradf. 495, 497- 60 2 Black. Comm. 206, and Mr. ^^2 Black. Coram. 502, 515, 516. 384 The Decedent Estate Law. § 86 The " Arbor es Consanguinitatis" which usually figure in the treatises of common-law writers on Descent will be found only- perplexing in this State, smce the Revised Statutes absolutely re- versed most of the canons or rules on which they professed to be constructed."^ There can be little doubt, that collateral descents were reckoned at common law by the parentelic, and noit by the gradual, scheme."^ A person's parentela was the sum of all those who traced descent from him. At common law the various paren- tel<2 were successively called to the inheritance, in the order of their proximity to the dead man.^* If the inheritance was ex parte paterna the parenteltz on the father's side were first exhausted. If, on the other hand, the inheritance came from itbe side of the mother her parent el(P, subject to the canons in force, were first ex- hausted. But at coranton law the scheme in fact might be more com- plicated if the inRenlance was to be treated as neither ex parte paterna nor ex parhs^ma^rna, for then all the relatives on both sides were to be reckoned with. But even then, there were rules of the common law excluding the half blood and giving preference to males over females, or to the " worthiest of blood," "'■' as it was called, which much simplified their problem. Up to the present time, no very involved case of descents of real property to remote collaterals seems to have arisen in this State, and within reasonable distances of proximity of blood the problems, presented to the lawyer even under the existing statute of partible inheritances, are not very complicated. The real trouble will arise in the distant future, when it becomes necessary to re- sort to the residuary or ultimate canon of descents, now provided for in the gad section of this act. Under that rule inheritances unprovided for in the statute descend according to the course of the common law, as it stood in 1777, or at the time of the adoption of the first Constitution of this State. ''^ Chancellor Kent, with his usual acumen, thought this rule a mistake and that the civil law should then control, though conceding that in such remote degrees of collateral inheritance almost any rule would serve.' .71 864 Kent Comm. 374. ™See § 92, Decedent Estate Law; " See 2 P. & M. 294, seq. ; 3 Hunt v. Kingston, 3 Misc. 309. Holdsworth, Hist. Eng. Law, 145. 'I4 Kent "Coram. 411. 682 P. & M. 294. 69 Hale's Hist. Com. Law, 313, 320. § 86 Descent. 385 The outlook now is that before actual embairrassmeni arises in application, the law regulating descent of real property in this State will have undergone a revision of principles which already " loom portentous " in the political horizon. That t!he laws of property, including descent, are undergoing gradual but profound changes any casual observer can detect. That no pictorial tree of collateral descents {arbor consanguinitatis) can aid the demonstrations of the rules prescribed by the present statute is apparent from the cases reported in this State. We shall, therefore, omit it, as the lines of descent are generally in practice short, and easily con- structed within the rules which govern proximate, rather than remote, descents.'- When the descent is so remote as to involve the application of section 92 of this act, the arbor would have to be reconstructed. Up to section 92 of this article the existing rule of descent, and partible inheritances, demand an arbor consanguinitatis framed on the gradual principle, rather than on the parentelic. When sec- tion 92 is applicable, the " arbor " would have to be constructed on the oid parentelic soheme to be of any service to the practitioner. '2 See Matter of Reeve, 38 Misc. p. 413 ; Mc Carthy v. Marsh, S N. Y. a-t p. 265. 25 386 The Decedent Estate Law. § 87 § 87. Brothers and sisters and their descendants. If all the brothers and sisters of the intestate be living, the inherit- ance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall pre- vail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees. Formerly § 287, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 287. Brothers and sisters and their descendants. — If all the hrothers- and sisters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to hira or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such de- scendants are of unequal degrees.'* §287 was formerly i Revised Statutes, 752, §§ 8, 9: 5 8. If all the brothers and sisters of the intestate be living, the inherit- ance shall descend to such brothers and sisters ; if any of them be living, and any be dead, then to the brothers and sisters, and every of them who are living, and to the descendants of such brothers and sisters as shall have died; so that each brother or sister who shall be living, shall inherit such share as would have descended to him or her, if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such descendants shall inherit the share, which their parent would have received, if living. '3 Repealed by § 130, Decedent Estate Law. § 87 Descent. 387 § 9. The same law of inheritance, prescribed in the last section, shall pre- vail, as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such descendants are of unequal degrees.'-* Rule IV of Descents. Section 87 of this act states somewhat more explicitly and in detail the rule specified under the preceding section of the statute.''-^ The word " co llectively " in this section was inserted in the draft of the Commissioners of Statutory Re- vision in 1896 by the Legislature,''^ in order to make it more clear, when the omsiOn of an inheritance was intended to be per stirpes and when per capita. It is now most clear that if intestate leaves brothers and sisters surviving, they inherit equal shares, and that to the remotest degree the descendants of deceased brothers and sisters take by representation collectiveTy the share their stirps would have taken if living.''^ Butn there be no brothers and sis- ters surviving, but only their children, then such children take per capita; all standing in equal degree of collateral succession froim the intestate.'* If there be some nephews and nieces surviving and some dead leaving children, then such children (being of the degree of great-nephews and great-nieces of intestate) will suc- ceed only to the share of their deceased parent, as the succession in that case is to heirs in unequal degree of propinquity, and con- sequently per stirpes under the present Rule IV, now regulating col- lateral descent.'* Half-Blood. The rule is also explicit that where the intestate is the first purchaser of the inheritance for value (i. e., has acquired / it for value, and not by gift or devise by, from or through some relative),'" then his collaterals of the 'half blood are entitled to "Repealed, chap. S47, Laws of '« Hyatt v. Pugsley, 33 Barb. 373, 1896. 377; Pond v. Bergh, 10 Paige, 140, '5 § 86, supra. 148 ; Kelly v. Kelly, 5 Lans. 443, 446. " Note of commissioners of statu- ," Pond v. Bergh, 10 Paige, 140, tory revision. Appendix III, infra. 148; Matter of Clark, 62 Hun, 275, " Hannan v. Osborn, 4 Paige, 336, 283 ; 4 Kent Comm. 400. 340, 341 ; Matter of Healey, 27 Misc. *» Infra, i 90, Decedent Estate Rep. 353; Matter of Davenport, 67 Law. App. Div. 191, 172 N. Y. 454; § 87, Decedent Estate Law. 388 The Decedent Estate Law. § 87 share with those of the whole blood of intestate;" provided, of course, he leaves no descendants or parents. The exclusion of the half blood in inheritances, according to the common law of Eng- land, although defended by that great jurisit, Blackstone.^^ came to be mudh reprobated by all the law reformers in England.*^ The revisers of the Revised Statutes, who were very much in sym- pathy with Mr. Humphrey's strictures on the feudal parts of the common law, aholished the common-law rule excluding the half "blood, but with their usual wisdom they aboHshed it provisionally.'* Alien Ancestor. The descent between brothers and sisters is immediate, and even before 1830, it made no difference in their right of succession inter se that their common father was an alien.*' But if some brothers and sisters are citizens and some aliens, the citizens take to the exclusion of the aliens.'^ The courts of New York follow the general rule of the common law to the effect, that the descent between brothers is immediate,^^ although in the great case of Collingwood v. Pace, Sir Orlando Bridgeman wias of another opinion.'' "§ 90, Decedent Estate Law; 122; Luhrs v. Eimer, 80 N. Y. 171, Brown v. Burlingham, S Sandf. 418; and see "FoWleVg "IReal Prop. Law Valentine v. Wetherill, 31 Barb. (3d ed.), 127. 6SS. 659; Schult V. Moll, 132 N. Y. «> 1 Vent. 423; 2 Black. Comm. 212, 122, 125. 226; Hale's Com. Law, 258, 270; 82 2 Black. Comm. 228; 2 P. & M. Litt, §§ 2, 3; Co. Litt. 10 a & b, and 300; 3 Holdsworth, Hist. Eng. Law, iia; Wright's Tenures, 180, 186, 151- chap. 3; Watkins on Descents, 95. 83 Humphrey's Real Prop. (2d ed.), This rule has been since changed S8, 59. in England — Challis, 186— and 8* I R. S. 753, § 15 ; § 90, Decedent brothers there now trace through Estate Law. their parents, which is regarded as 86 See Fowler's Real Prop. Law anomalous. See note (4th ed.), Wat- {3d ed ), 127 and § 95, Decedent Es- kins on Descents, 96. tate Law. ss See Bannister's Edition of ' «« Leary v. Leary, SO How. Pr. Bridgman's Judgments, p. 410. § 88 Descent. 389 § 88. Brothers and sisters of father and mother and their descendants and grandparents. If there be no heir en- titled to take, under either of the preceding sections, the inheritance, if it shall have come to the intestate on the part of the father, shall descend : 1. To the brothers and sisters of the father of the intes- tate in equal shares, if all be living. 2. If any be living, and any shall have died, leaving issue, to such brothers and sisters as shall be living and to the descendants of such as shall have died. 3. If all such brothers and sisters shall have died, to their descendants. 4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. In all cases men- tioned in this section the inheritance shall descend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. 5. If there be no such brothers or sisters of such father or mother, nor any descendants of such brothers or sisters, the inheritance, if it shall have come to the intestate on the part of his father, shall descend to his father's parents, then living, in equal parts, and if they be dead, then to his mother's parents, then living, in equal parts; but if the in- 390 The Decedent Estate Law. § 88 heritance shall have come to the intestate on the part of his mother, it shall descend to his mother's parents, then living, in equal parts, and if they be dead, to his father's parents, then living, in equal parts. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to his living grandparents in equal parts. Formerly § 288, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 288. Brothers and sisters of father and mother and their descendants and grand-parents. — If there be no heir entitled to take, under either of the preceding sections, the inheritance, if it shall have come to the intestate on the part of the father, shall descend: 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living. 2. If any be living, and any shall have died, leaving issue, to such broth- ers and sisters as shall be living and to the descendants of such as shall have died. 3. If all such brothers and sisters shall have died, to their descendants. 4. If there be no such brothers or sisters of such father, nor any de- scendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. 5. If there be no such brothers or sisters of such father or mother, nor any descendants of such brothers or sisters, the inheritance, if it shall have come to the intestate on the part of his father, shall descend to his father's parents, then living, in equal parts, and if they be dead, then to his mother's parents, then living, in equal parts ; but if the inheritance shall have come to the intestate on the part of his mother, it shall descend to his mother's parents, then living, in equal parts, and if they be dead, to his father's parents, then living, in equal parts. If the inheritance has not come to the § 88 Descent. 391 intestate on the part of either father or mother, it shall descend to his living grand-parents in equal parts.^' Sections i, 2, 3 and 4, were formerly i Revised Statutes, 752, section 10, and I Revised Statutes, 753, sections 11, 12 and 13: § 10. If there be no heir entitled to take under either of the preceding sections, the inheritance, if the same shall have come to the intestate on the part of his father, shall descend, 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living: 2. If any be living, and any shall have died leaving issue, then to such brothers and sisters as shall be living, and to the descendants of such of the said brothers and sisters as shall have died : 3. If all such brothers and sisters shall have died, then to their descendants : 4. In all cases, the inheritance shall descend in the same manner, as if all such brothers and sisters, had been the brothers and sisters of the intes- tate.so § II. If there be no brothers and sisters, or any of them, of the father of the intestate, and no descendants of such brothers and sisters, then the inheritance shall descend to the brothers and sisters of the mother of the intestate, and to the descendants of such of the said brothers and sisters as shall have died, or if all shall have died, then to their descendants, in the same manner, as if all such brothers and sisters had been the brothers and sisters of the father.^ § 12. In all cases not provided for by the preceding sections, where the inheritance shall have come to the intestate on the part of his mother, the same, instead of descending to the brothers and sisters of the intestate's father, and their descendants, as prescribed in the preceding tenth section, shall descend to the brothers and sisters of the intestate's mother, and to their descendants, as directed in the last preceding section; and if there be no such brothers and sisters, or descendants of them, then such inheritance shall descend to the brothers and sisters and their descendants, of the in- testate's father, as before prescribed.'^ § 13. In cases where the inheritance has not come to the intestate, on the part of either the father or mother, the inheritance shall descend to the brothers and sisters both of the father and mother of the intestate, in equal shares, and to their descendants, in the same manner as if all such brothers -and sisters, had been the brothers and sisters of the intestate.^i Comment. — The fifth subdivision of section 88 was enacted, and other sections were re-enacted,'- by chapter 106, Laws of IQ04.. which v became a law March 22, 1904, to take effect iromediStely. 89 Repealed by § 130, Decedent Es- 'i Repealed, chap. 547, Laws of 1896. tate Law. 92 gee § 288, Appendix III, infra. 90 Repealed, chap. S47, Laws of 1896. 392 The Decedent Estate Law. § 88 Comment on Section 88. Neither the act of 1782" nor that of 1786°* made any provision for collateral succession beyond the children of brothers and sisters of an intestate.''^ Farther than that degree, collateral succession was then regulated by the com- mon law, the male stock being preferred."® The Revised Statutes, by the addition of the provision above set out under this section, introduced the rule of partible inheritances and a succession by intestate's parents' brothers and sisters and .their descendants to the remotest degree. " Rule IV of Descents," mentioned above,"'' was also made applicable to such inheritances. Thus the principle of the acts of 1782 and 1786 was extended to fathers' and mothers' brothers and sisters and their descendants, or so as to include uncles and aunts and their descendants,"* and thus the English or camnion-law rule, which preferred the male stock and the eldest male of that stock, was abrogated one step farther. The act of 1904, referred to above, permitted grandparents to (inherit, in default of other heirs specified in section 281 of the /Real Property Law of i8g6. Relatives of the Half-Blood. In a succession by uncles and aunts and their descendants, the rule that those of the half-blood are let into the inheritance prevails, subject to the proviso in sec- tion 90 of this act."" Uncles and Aunts and their Descendants. Under this section, if the estate of an intestate comes to him on the part of his father,^ and there be no lineal descendants, no parents, no brothers and sisters or their descendants, then the estate devolves on the father's ^^ Supra, p. 337. Davenport, 172 N.Y ^.;^4. d =,Q: Mat- si 5'M/'ra, p. 35S. ter c)'f TBoiiiiJMOll, 8/ App Div. 609, 95 Hannan v. Osborn, 4 Paige, 336 ; involved same point, 41 Misc. 223, Pond V. Berg, 10 id. 140, 148; 1 R. 178 N. Y. 554, and was an attempt to L. 52. overthrow. Matter of Davenport, 172 96 Chap. 2, Laws of 1782 ; chap. 12, N. Y. 454. Laws of 1786. Note of revisers to s' § 90, Decedent Estate Law; Bee- chap. 2, part 2, R. S.; Appendix No. bee v. Griffing, 14 N. Y. 235. II, infra. ^ Supra, p. 371, as to similar con- s' Sw/iro, p. 382. struction of, "on the part of the 984 Kent Coram. 408, 411; Hunt v. mother." Kingston, 3 Misc. 309; Matter of ) § 88 Descent. 393 brothers and sisters,^ or their descendants in inHnitum as pro vided in Rule IV of Descents.^ If, on the other hand, the estate has come to intestate on the part of the mother,* the estate, in the absence of nearer consanguinei, or blood relations, will go to her brothers and sisters and their desoendants, and be divided accord- ing to Rule IV of Descents.^ But if the estate comes to intes- tate on the part of neither father nor mother, then the brothers and sisters of both parents, agnates^ and cognates,^ or their descend- ants, share the inheritance in accordance with the principles stated in Rule IV of Descents.^ When an estate may be said to come to an intestate " on the part of his father," and when " on the part of his mother " has been considered above at some length in reference to its position in section 84 of this act. This expression, as there explained, was novel in its application to inheritances by fatliers, as fathers, at the common law, did not inherit, because, as Blackstone thiniss, " Successionis feudi talis est natura, quod ascendentes non suc- cedunt." ' In connection with collateral inheritances, the expres- sion ex parte paterna is appropriate and in its right place ; collateral heirs ex parte paterna being always excluded by the common laiw in a succession to an estate ex parte materna and vice versa}" This rule of the common law, filtrating through the feudal courts, was probably only an application of the older maxim, "paterna pa- ternis, materna maternis." ^^ There were two common-law rules effectively applied to inheritances in order to produce this result, viz., " on failure of lineal descendants of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser ;" ^^ and next, " the collateral heir 2 Wells V. Seeley, 47 Hun, 109, ^ Supra, p. 382; Brown v. Burling- j 116; 4 Kent Comm. 408; Matter of ham, 5 Sandf. 418; Hunt v. King- Davenport, 172 N. Y. 454, 459. Cf. ston, 3 Misc. 309, 312; Adams v. An- I Matter of Thompson, 41 Misc. 223, dctson, 23 id. 705; Knowlton v. At- 87 App. Div. 609. kins, 134 N. Y. 313, 317. ^ Supra, p. 382. '2 Black Comm. 211. ^ Supra, p. 371, as to construction W2 Black. Comm. 220, 222. of " on the part of the mother." n See above pp. 372, 373. 5 Supra, p. 387 ; Matter of McMil- 12 gee above pp. 353, 372. In the in- lan, 126 App. Div. 158; Kingston v. terpretation of this rule for conven- Atkins, 134 N. Y. 313, 317. ience the last purchaser was as- ^ Agnates, relations by the father. sumed (3 & 4 Wm. IV, chap. 106) to ' Cognates, relations by the mother. be of the blood of the first purchaser. 394 The Decedent Estate Law. § 88 of the person last seised must be his next collateral kinsman of the whole blood." ^^ No better rules could have been devised for the purpose of enforcing the principle, " paterna patcrnis, materna maternis," and keeping landed estates in the blood of the family from which they came.^* The very liberal changes in the common law of descent, first efifected by the acts of the Legislature of this State, in 1782 and 1786,^^ and subsequently revised in the Revised Statutes,^'' made a reconstruction of the theory of tlie law of de- scents essential, and consequently the application of the new law has not been without its perplexities, as no more involved ques- tions than titles by descent to remote collacterals are ever submitted to the courts of justice. The common-law rule, that in collateral inheritances title must be deduced from the person last seised and descends only to /those collaterals being of the blood of the first purchaser, is now abro- gated in this State ;^^ and so is the total exclusion of the half blood, and necessarily also the doctrine, " possessio fratris facit sororem esse haeredem." ^^ The existing statute has by its pro- visions substituted for these common-law rules last indicated the rule, that where the last owner of real property dies intestate, without lineal descendants, father, or a father not entitled to take, mother, or a mother not entitled to take, brothers, sisters or their descendants, the stock of descent (if the last owner was not him- self a purchaser^') is his immediate ancestor, donor, or devisor from whom the inheritance came. Such was the construction early put upon a not dissimilar statute of Rhode Island by Mr. Justice Story and the Supreme Court of the United States,^" and that not- able decision seems to be in line with the modern adjudications of this State. ^^ For the purposes of the application of this rule 13 See above, pp. 353, 374. 381. " Matter of Peck, 57 Misc. S3S. 1* See statement of eminent coun- 20 Gardner v. Collins, 2 Peters, 53. sel in Gardner v. Collins, 2 Peters, ^iBeebee v. Griffing, 14 N. Y. at 71. 72. pp. 242, 243; Valentine v. Wetherill, 16 Chap. 2, Laws of 1782; chap. 12, 31 Barb. 655; Hyatt v. Pugsley, 33 Laws of 1786; supra, pp. 337, 355. id. 373; Emanuel v. Ennis, 48 Sup. "Chap. II, part II, R. S. all now Ct. 430; Adams v. Anderson, 23 re-enacted in this act. Misc. 705; Righter v. Ludwig, 39 id. "Hyatt V. Pugsley, 33 Barb. 373, 416; Ferry v. Dunham, 136 App. 376. Div. at p. 6:i. Cf. Wells v. Seeley, 18 § 90, Decedent Estate Law. Cf. 47 Hun, 109, 116. 3 Black. Comm. 227, 228. 2 88 Descent. 395 of construction, collaterals, such as brothers or sisters, from whom the inheritance came, are regarded as immediaAe ancestors.^^ That the decisions just cited are not those best calculated to keep property strictly in the line from which the inheritance comes, perhaps not very remotely, may be seen from an examination of the cases cited. A construction better calculated for that purpose would have been one which makes title by descent from the last owner descend to his collaterals of 'the blood of the last purchaser, donor, or devisor. Such a construction would not, it would seem, ill-accord with the obvious intent of the statute, and would make the descent in all cases follow more strictly the blood of such last purchaser, donor, or devisor. This would certainly be a bolder application of the original doctrine, " paterna paternis, materna maternis," which the revisers of the New York statutes had in mind. But the whole question is one of considerable nicety, and doubtless the construction of the adjudications cited is calculated to make the root of descent proximate, rather than remote, and this construction, therefore, tends to both simplicity and conveni- ence. But before dismissing this subject let us consider very briefly the argument why such a construction would have been more in accord with the intention of the fraimers of the Revised Statutes. Collateral Inheritances. In all collateral inheritances of land, beyond the descendants of brothers and sisiters of the whole blood, the Revised Statutes and its present re-enactment, the Decedent Estate Law, recognize to some extent the old principle, "paterna paternis, materna maternis" and that inheritances of land should still follow the blood of the last purchaser, provided such purchase is not too remote, and within reasonable limits.'^ That is, the expressions " on the part of his mother " and '"' on the part of his 22 Wheeler v. Clutterbuck, 52 N. Y. 22 §§ 88, 90, Decedent Estate Law. 67, 72; Valentine v. Wetherill, 31 Cf. Wilson's Modern English Law, Barb, at p. 659; Righter v. Ludwig, 44, 206; Knowlton v. Atkins, 134 39 Misc. 416, 420; Ferry v. Dun- N. Y. at p. 321. ham, 136 App. Div. at p. 63. Cf. Wells V. Seeley, 47 Hun, p. 116. 396 The Decedent Estate Law. § 88 father " seem to indicate an intention to continue to exclude from the inheritance those not of the blood of the donor, devisor, or purchaser from whom the estate is derived.^* It will be remem- bered that in England also, shortly after the Revised Statutes, the common law of descent was greatly changed. The common law maxim " seisina facit stipitem " was there so altered as to cause a title by descent to be deduced always from the last mt- chaser, instead of from the person last seised,-^ In more modern^ times in England, title by descent is said to be deduced from the last owner, and no longer from the last purchaser.^^ There can be little doubt from the professional discussions in the air about the time of the preparation and enactment of the Revised Stat- utes,^^ that the revisers intended to prescribe the antecedent rule, " pate ma paternis, materna maternis," by the aidoption of the ex- pressions in the statutes, " on the part of the mother," and " on the part of the father," for after all these expressions were mere translations of the common-law terms " ex parte paterna " and " ex parte materna." ^^ As terms of the commion law they had a precise and relative meaning in respect of icollateral inheritances of estates in real property.^' The express retention of such terms in their appropriate situation, by such learned men as the revisers of the Revised Statutes, seems to indicate that they certainly con- templated that estates should descend as at comm.an law collaterally to the blood of the grantor, donor, or devisor from whom the property came,^° and they probably contemplated that they should descend from the last owner to his collaterals of the blood of tlie last purchaser, for that would be the surest way to give effect to 2*§§ 84, 8s, 87, S8, 90, Decedent 28 Beebee v. Griffing, 14 N. Y. at Estate Law; Beebee v. Griffing, 14 p. 244. N. Y. at pp. 243, 244. 29 Perkins v. Smith, 116 N. Y. 25 3 & 4 Will. IV, chap. 106. 441 ; Fowler's Real Prop. Law (3d 26 Wilson, Modern English Law, _ ed.), 94; supra, p. 371, under § 84, 206 (ed. of 187s). Cf. Challis, 185; Decedent Estate Law. Goodeve R. P. 144 (ed. of 1897). S" See §§ 80, 84, 85, 87, 88, 90, De- 2'' See on Descent, 1st ed. of Hum- cedent Estate Law; Knowlton v. phreys on Real Propertj' and (2d Atkins, 134 N. Y. 313, 321 ; Wheeler ed.), pp. 58, 59- The second edition v. Clutterbuck, 52 id. 67; Beebee v. omits much on this subject. See Griffing, 14 id. at p. 244. Preface to 2d edition. § 88 Descent. 397 the maxim, " paterna paternis, materna maternis." We say that the revisers " probably so intended," for this point is conjectural rather than demonstrative, although the reasons for such conjec- ture have been amply detailed in our commentary on this article. Undoubtedly it was the opinion of Mr. Justice Story in Gardner v. Collins^^ vkfhidh caused the courts of New York to incline the other way, and to construe the statute as they have done.^^ The result has been in some cases to defeat the application of the oldest rule in any law of descents, "paterna paternis, materna maternis." By treating an ancestor, from whom' an owner takes by immediate descent, as the purchaser, or root of descent, the late adjudications often do, in effect, what the old cases call " break the descent." ^^ The consequence is that at the present day a gift may not pursue the line of devolution in the blood of the donor, which is the line the Revised Statutes probably initended.^* Distribution of Personalty. In 1898, an amendment to the Code of Civil Procedure'^ made the Statute of Distributions of personal property follow the real property rule, relating to the in- heritance by remote collaterals.^" In 1903 the rule was further changed.^^ But in 1905 this was again altered, so as to provide that no representation should be admitted among collaterals after brothers' and sisters' descendants.''* But as this last change will be again noticed, imder section 98 of this act, it need not be pursued at this point, as it is not longer relevant to the article on descents. '1 2 Peters, 53. 36 Matter of Davenport, 36 Misc. ^^Beebee v. Griffith, 14 N. Y. at 476 Matter of Davenport, 67 App. p. 243; Hyatt V. Pugsley, 33 Barb. Div. 191, 172 N. Y. 454; Matter of at p. 376; Wheeler v. Cluttterbuck, Dunning, 48 Misc. 482; Matter of 52 N. Y. at p. 70; Valentine v. McMillan, 126 App. Div. 155, 163; Wetherill, 31 Barb, at pp. 659, 660. Matter of Hardin, 97 id. 493 ; Matter '^ Williams on Seisin, 62. of Devoe, 107 id. 245 ; Matter of 34 See for example Righter v. Hoes, 119 id. 288; Matter of Nichols, Ludwig, 39 Misc. 416, 420; Know!- 60 Misc. 299; Matter of Barry, 62 ton v. Atkins, 134 N. Y. 313, 317; id. 456. Ferry v. Dunham, 136 App. Div. at ^7 Chap. 367, Laws of 1903. p. 63. 38 Chap. 539, Laws of 1905. 35 § 2732, Code Civ. Pro. 398 The Decedent Estate Law. § 88 Alien Uncles and Aunts. Alien uncles and aunts are excluded in intestate successions by collaterals/' unless special acts permit such succession.*" Grandparents. The admission of grandparents into the stat- utory table of descents is entirely new and due to the recent act of the Legislature adding subdivision 5 to section 288 of The Real Property Law of 1896 as first enacted.*^ The original scheme of the statute excluded grandparents, or ascendants beyond father and mother.*^ If great-grandparents are now \ntNed to inherit, it must be in default of all heirs and other ascerfoMts and in the rare instances tolerated at common law.*^ v\ 39 Leary v. Leary, 50 How. Pr. 122 ; <2 4 Kent Comm. 407. et supra, p. 363. ■isg gg, Decedent Estate Law; 2 <" Fowler's Real Prop. Law (3d P. Wms. 613. ed.), 106, I2S, 126. ■*! Chap. 106, Laws of 1904; see above, pp. 376, 389, 391. § 89 Descent. 399 § 89. Illegitimate children. If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall descend to his mother ; if she be dead, to his relatives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the in- heritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit. Formerly § 289, The Real Property Law (chap. 46, General Laws), chap. S47. Laws of 1896: § 289. Illegitimate children. — If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit.^* Section 289 was formerly i Revised Statutes, 753, § 14; i Revised Stat- utes, 754, § 19, and chapter 547, Laws of 1855, § i. § 14. In case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother; if she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate.*^ § 19. Children and relatives who are illegitimate, shall not be entitled to inherit, under any of the provisions of this Chapter.*^ § I. Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.*'' Comment on Section 89. By the common law a bastard or illegitimate child was one conceived or born out of lawful matri- mony.** By 'the common law, a subsequent marriage of the par- ** Repealed by § 130, Decedent *' Repealed, chap. 547, Laws of Estate Law. 1896. *5 Repealed, chap. 547, Laws of *8 1 Black. Comm. 454; 2 Kent 1896. Comm. 211, 212. *6 Repealed, chap. 547, Laws of 1896. 400 The Decedent Estate Law. § 89 ents of an illegitimate child did not legitimate such issue.*' It is notorious that the Barons at Merton, in 1235, expressly refused to receive the civil law on this point in the celebrated words, " Nolumus leges AnglicB mutari." "^ Marriages within the forbidden degree are, in New York, abso- lutely void, and the children of such marriages illegitimate.^^ But where a marriage is only avoided by decree of the court, the prior issue are not illegitimate.^- Before the Revised Statutes, when the common law prevailed, a bastard could not inherit. He was " iilius nullius," or " filius populi " or even " fiUus term." ^' Legitimation per Subsequens Matrimonium. In the modern Latin States the principle of the Roman ,law,°* " that a subse- quent marriage of parents legitimates their prior offspring," pre- vails. It is also the law of Scotland, and it is, as such, recognized on Scotch appeals to the House of Lords, where the rule, " legitimatio per subsequens matrimonium," is frequently applied to intestate succession by Scotchmen.'^ This principle is also -recog- nized by the courts of New York, in a proper case where the law of the domicile of origin is applied.^* So raitional is the prin- ciple of the Roman law, touching legitimation of children by sub- sequenit marriage of their parents, that it was in 1895 converted <'l Black. Comm. 4S4; 2 Kent 63 j Black. Comm. 454; 2 id. 247; Comm. 208 ; Miller v. Miller, 18 Hun, Co. Litt. 8a ; 2 Kent Comm. 212, and 507; s. c. revd., 91 N. Y. 315; For- cases cited below under this section, tescue " De Laudibus," etc., chap. 39. 64 q 5^ 27, 10 ; Nov. 89, 8 ; 78, 3 ; 12, and note by Amos, p. 156, ibid; 4; Miller v. Miller, 18 Hun, 507, 520; Doctor & Student, Dialogue i, chap. s. c, 91 N. Y. 315; i Wooddeson, 7; I Wooddeson, Law Lect. 236; Law Lect. 233 seq. Hale's Hist. Com. Law, 52. Cf. bs See note 11, 2 Wend. Black 248; Bollerman v. Blake, 24 Hun, 187, 94 Lauderdale Peerages, L. R., 10 App. N. Y. 624. Cas. 692 ; s. C, 17 Abb. N. C. 439. 60 Selden, chap. 9, § 2 ; Stubbs, se Miller v. Miller, gi N. Y. 315 ; Const. Hist. II, 52; Scrutton, 72. s. C, 18 Hun, 507, 520, revd., 01m- 61 2 R. S. 139, § 6s, chap. 601, Laws stead v. Olmstead, 190 N. Y. 458. of i893y now § 5, " Domestic Rela- Cf. Bollerman vT%rake, 24 Hun, 187, tions Law." 23 Alb. L. J. 165. 62 Code Civ. Pro., §§ 1759, 1760; 2 R. S. 139, § 4, now § 7, Domestic Relations Law. 89 Descent. 401 into a law of this State by statute,'^ and it is now perpetuiated by the " Domestic Relations Law." '' These acts are not retro- active, and they saved vested rights either of administration or in estates of persons, under prior limitations to such parents, with remainders over for defaults of issue, etc.°° A legitimation per subsequens matrimonium under chapter 531, Laws of 1895, and its several re-enactments, does not operate to defeat rigJits vested prior to that act.**" Where a will was made before the statute but testator died after it, it was held /that a devise of remainder " to lawful issue " did not entitle an illegiti- mate son whose parents had intermarried before the statute to take the remainder.*^ In order to legitimate issue, the subsequent marriage must be that of the putative parents.^- Children thus made legitimate by statute do not take rnider this section of this act,°^ but they take as legitimate lineal descendants under the Table of Descents, now embodied in section 81 of "this act."* How far a statutory legiti- mation by a subsequent marriage of the parents entitles such issue to take real estate, situated in another State, by comity, is the subject of an interesting monograph, to which it may be useful to refer.*^ In Pennsylvania and other States, it has been held that- such legitimation, under the laws of a foreign State, produces no such result in P enns ylvania or juch other States; but such is not the rule in New YofE A "Chap. 531, Laws of 1895. 58 Chap. 272, Laws of 1896, being chap. 48 of " The General Laws," § 18, amd., chap. 725, Laws of 1899; chap. 742, Laws of 1907; all now § 24, chap. 14, Consol. Laws, as en- acted by chap. 19, Laws of 19O9. ssperrie v. The Pub. Admr., 3 Bradf. 249; Wissel v. Ott, 34 App. Div. 159; Matter of Barringer, 29 Misc. 457. Cf. Smith v. Lansing, 24 id. 566. 6" Wissel V. Ott, 34 App. Div. 159. Cf. Matter of Barringer, 29 Misc. 457; Matter of Schmidt, 42 id. 463. 61 LT. S. Trust Co. v. Maxwell, 26 Misc. 76. 26 62 Matter of Pfarr, 38 Misc. 223; Matter of Del Genovese, 56 id. 418. 63 § 89, Decedent Estate Law. 6* Townsend v. Van Buskirk, 33 Misc. 287. 66 23 Alb. L. J. 165; and see Matter of Hall, 61 App. Div. 266, 277; Olmsted v. Olmsted, 118 id. 69, 190 N. Y. 458. 66 Smith v. Dorr's Admr., 34 Pa. \ St. 126 ; Barnum v. Barnum, 42 Md. , 250; Lingin v. Lingin, 45 Ala. 410; Stoltz V. Doehring, 112 111. 603. Cf. Scott V. Key, 11 La. 232; Miller v. Miller, 91 N. Y. 315; Matter of Lutz, 43 Misc. 230; Olmsted v. Olmsted, 100 N. Y. 458. 402 The Decedent Estate Law. § 89 Foreign Legitimation. If a child is legitimated, under the laws of a foreign country, where the marriage took place and the putative parents are domiciled, he may inherit in this State as heir of the father®' provided the marriage of such parents is not polyg- amous, incestuous or prohibited by law."* Status of Legitimacy. Children are always presumed to be legitimate until the contrary is shown."" A recognition by the fam- ily, general reputation, matrimonial cohabitation of parents, are sufficient to establish legitimacy in this State, especdaly after a, great lapse of time.'"' In this State, " concensus, non concubitus, facit matrimonium," '^ and the maxim, " omnia prcBsumuntur pro matrimonio" is very liberally applied in order to legitimate children.'^ Mother the Heir, When. At common law an intestate bastard was incapable of transmitting real and personal property, except to his wife and lineal descendants.'^ But when the status of illegiti- macy is once fixed upon a male child, his mother, if living, is, un- der this section, his universal heir, unless he leaves lawful issue surviving.'* Nei,ther the illegitimate children oi an illegitimate male nor his collaterals, however, inherit from him, under this sec- tion, but his mother, or her stock, excludes them in the succes- " Bates V. Virolet, 33 App. Div. '^CaujoUe v. Ferrie, 23 N. Y. 90, 436; Matter of Hall, 61 id. 266, 276. 95; Hynes v. McDermott, 91 id. 451,- *8 Olmsted v. Olmsted, 190 N. Y. Montgomery v. Montgomery, 3 Barb. 458. , Ch. 132; Matter of Schmidt, 42 Misc. ^' Cross V. Cross, 3 Paige, 139 ; 463 ; Tracy v. Frey, 95 App. Div. Montgomery v. Montgomery, 3 Barb. 579; Mayer v. Davis, iig id. 96, 122 Ch. 132; Davis v. Davis, 27 Misc. id. 393; Matter of Garner, 59 Misc. 455 ; Tully v. Tully, 28 id. 54; Mat- 116; Matter of Spink, 62 id. 158. ter of Rawson, 29 id. 534, 540; Mat- Cf. Osborne v. McDonald, 159 Fed. ter of Kelley, 46 id. 541 ; Mayer v. Rep. 391. Davis, 122 App. Div. 393. '^ -yvooddeson. Law Lect. 236, 237. ™Gall v. Gall, 114 N. Y. 109, 118; '*§ 89, supra; Matter of Mericlo, Hynes v. McDermott, 91 id. 451, 459; 63 How. Pr. 62; St. John v. North- Cramsey v. Sterling, in App. Div. rup, 23 Barb. 25, 32; Rousseau v. 568, 576; Geiger v. Ryan, 123 id. Rouss, 180 N. Y. 116, 122. 722. iFenton v. Reed, 4 Johns. 52; Gall V. Gall, 114 N. Y. 109. § 89 Descent. 403 sion.'" But the mother of an illegitimate female does not inherit to the exclusion of the illegitimate offspring of such female. This section of ithe Decedent Estate Law covers that case. Sister Heir, When. If an illegitimate die intestate after his mother and leaving an only sister, born of the common mother, but no brother, the sister inherits, and has the right to administer.''* Alien Mother of Illegitimate. If the mother be living and excluded by alienage, it seems that a brother of the deceased (but bom in wedlock of the same mother) can not in'herit." '6 Matter of Mericlo, 63 How. Pr. '^ Matter of Lutz, 43 Misc. 230. 62; Miller v. Miller, 18 Hun, 507, "St. John v. Northrup, 23 Barb. 516; St. John V. Northrup, 23 Barb. 32. 25, 32; Kiah v. Grenier, 56 N. Y. 220, 224. .404 The Decedent Estate Law. § 89 § 90. Relatives of the half-blood. Relatives of the half- blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same de- gree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. Formerly § 290, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 290. Relatives of the half-blood.— Relatives of the half-blood and their ■descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intes- tate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance." § 290 was formerly i Revised Statutes, 7S3, § 15 : § IS- Relatives of the half-blood shall inherit equally with those of the whole blood in the same degree ; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors ; in which case, all those who are not of the blood of such ancestors, shall be excluded from such inheritance.'' Rule V of Descents. The rule that collaterals of the half "blood are now admitted into the existing " Tiable of Descents," *° although subject to the provision that such collaterals of the half blood are excluded when the inheritance came to intestate by de- scent, devise or gift from an immediate ancestor not of (their iDlood, forms Rule V of the existing canons of descent, it being an innovation on the common law of descents.^^ Rule V of Descents is fully and clearly expressed in this section of the Decedent Estate I.aw, and needs no paraphrase. Account of Section 90, Decedent Estate Law. The English common law did not admit those of the half blood into collateral '8 Repealed by § 130, Decedent Es- 80 § gj^ Decedent Estate Law. tate Law. ^^ Supra, pp. 353, 354. '9 Repealed, chaj*. S47, Laws of 1896. go Descent. 405 able exceptions to this rule ; e. g., where the intestate had not been actually seised of a hereditament in order to make himself the stock or terminus, then 'the brother of the half blood succeeded before the sister of the wliole blood.*- This was because it was necessary to go back to the seisin of the common father of the intestate and the half blood, and the brother of the half blood was the common father's heir. Blacksitone lucidly explains the origin of the feudal or common-law rule which excluded the half blood from collateral successions; it being founded on a presumption that the half blood could not be of tlie blood of the first feuda- tory.** It is obvious that this rule might apply beneficently to inheritances of family or ancestral estates, but that it had a less reasonable application in successions to those estates acquired solely by the industry of the persons last seised. The Legislature of New York, in 1786, wisely changed the common law in this respect, so as to admit brothers and sisters of the half blood intO' collateral successions, in every case where the inheritance came from a common ancestor of such whole and hailf blood; but ex- cluding them in every other case."' The Revised Statutes carried the same principle much farther.*" But whether it was intended to apply to successions beyond those of uncles and aunts and their ■descendants is doubtful.*' This act goes not beyond the Revised Statutes in this respect.** Relatives of the Half-Blood. Thus, under the existing Stat- utes of Descents, half blood brothers and sisters of intestate and their descendants in infinitum^'-' and the half blood brothers and sisters of intesitate's father and mother and their descendants in infinitum,^" are admitted (according to the foregoing rules®^), into- ^^ Supra, p. 353; 2 Black. Comm. '8§§ po, 91, Decedent Estate Law. 228-231. 89 § 87, Decedent Estate Law. 83 Watkins, Descents, 42. so § gs^ Decedent Estate Law ; Bee- 8<2 Black. Comm. 228; Valentine bee v. Griffing, 14 N. Y. 235; 4 Kent V. Wetherill, 31 Barb. 6ss, 658. Comm. 408, 411. Cf. Hunt v. King- 85 Laws of 1786, chap. 12; I R. L. ston, 3 Misc. 309. of 1813, p. S3. '' i§ 81, 86, 87, 88, Decedent Es- se i R. S. 7S3, § IS. tate Law; supra, pp. 349, 380, 386,. 8' Appendix II, infra, note of re- 389. visers to i R. S. 7S3, §§ IS. 16. 4o6 The Decedent Estate Law. § 9° intestate collateral successions (in default of those of nearer de- gree), unless the inheritance came to intestate from an immediate ancestor who was not of the blood of such half blood collaterals of intestate.®" Beyond collaterals of the degrees indicated, the common-law rules regulating descents prevail."* Ancestor. The term " ancestor," as employed in this section, embraces collateral as well as lineal predecessors in blood and title."* But it means the immediate ancestor, from whom intestate Teceived the estate, and not some remote ancestor who may have first acquired the estate by purchase.""* When an esitate is derived by intestate by purchase and for value, and not by descent, devise or gift from an ancestor, the exclusion specified in this section has no application, and intestate's collaterals of the half blood share with those of the whole blood."^ An estate derived by an intestate " C." from his brother "A." is an estate derived by " C." from an " ancestor," "' within the mean- ing of this section, and although "A." in his turn had inherited the estate from their father, " B.," the half brothers and sisters of "A." and " C, not of the blood of " B.," are entitled to share in the inheritance ; for " C." derived the estate from ihis brother "A.," and not from his father " B.," and the half brothers and sisters of ■" C." were half brothers and sisters of "A.," and, therefore, of the blood of "A." "8 92 Wheeler v. Clutterbuck, 52 N. Y. N. Y. Super. Ct. (16 J. & S.) 430; 67; Valentine v. Wetherill, 31 Barb. Hyatt v. Pugsley, 33 Barb. 373; ^SS. 658; Brown v. Burlingham, s Conkling v. Brown, 8 Abb. Pr. (N. Sandf. 418; Matter of Wadsworth, S.) 34s ; Righter v. Ludwig, 39 Misc. 58 Misc. 549. 416, 420. S3 § 92, Decedent Estate Law. ^ Valentine v. Wetherill, 31 Barb. 9* Wheeler v. Clutterbuck, 52 N. Y. 655, 660 ; Brown v. Burlingham, 5 67; McCarthy v. Marsh, 5 id. 263; Sandf. 418; Matter of Peck, 57 Conkling v. Brown, 8 Abb. Pr. (N. Misc. S35- S.) 345, 350, note; Valentine V. Wet- «' McCarthy v. Marsh, 5 N. Y. herill, 31 Barb. 655, 659; Matter of 263; McGregor v. Comstock, 3 id. Reeve, 38 Misc. 409; Righter v. 408. Ludwig, 39 id. 416, 420. 9* Wheeler v. Clutterbuck, 52 N. Y. 95 Wheeler v. Clutterbuck, 52 N. Y. 67; Valentine v. Wetherill, 31 Barb. 67, 71 ; Valentine v. Wetherill, 31 655 ; Matter of Reeve, 38 Misc. 409 ; Barb. 655, 658; Emanuel v. Ellis, 48 Righter v. Ludwig, 39 id. at p. 420. I 90 Descent. 407 Uncles and Aunts of Intestate. The principle concerning the rights of those of the half blood to take in collateral successions applies to uncles and aunts of intestate, and to their descendants to the remotest degree.^" 89 Beebee v. Griffing, 14 N. Y. 235. 4o8 The Decedent Estate Law. § 91 § 91. Relatives of husband or wife. When the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, Hnder the provisions of this section, to in- herit such real property, shall be deemed to be the heirs of such intestate. Formerly § 290a, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896, as amended by chap. 481, Laws of 1901. § 290a. Inheritance from husband or vnfe. — When the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preced- ing sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate.^ Comment. This section was enacted by chapter 481 of the Laws of 1901, and after the original passage of " The Real Property Law " of 1896.= At first, the meaning of this section did not seem quite plain. The word " inheritance," simplicitcr may mean either an es'tate of inheritance, i. e., a fee simple,^ or any real property actually inher- ited.* In the former case only will it include estates devised to the intestate. The word " inheritance " in this seotion. cannot pos- sibly be restricted to the meaning prescribed by the initial and defining section of this article.' It must be construed as meaning " estate of unheti^ince." The words " from a deceased husband or wife " must, in order to meet the equity of the statute, be in- tended to mean " on the part " of a husband or wife.* 1 Repealed by § 130, Decedent Es- & Pers. Prop. 323 ; § 80, Decedent tate Law. Estate Law. 2 Chap. 547, Laws of 1896. b § go, Decedent Estate Law. sPrest. Abst. of Tit. 236; l id. «§ 80, Decedent Estate Law and 144; I Williams, Real Prop. 419. text under § 84, supra. * 2 Black. Comm. 201 ; Smith, Real § 91 Descent. 409 With such a construction of this section we shall perceive that if an estate be devised to a married person by the husband or wife of such person, or by relatives of the other spouse, and the devisee die without right heirs, such es'tate, ^istead of escheating, will now go back to the heirs at law o\ th^^ther spouse; thus, in practice, cutting down a fee to a life esS^te,\j- else making the estate thus devised a " qualified fee," or one by which the heirs of one sjK)use are made the heirs at law of the other.'' It will be remembered that neither husband nor wife inherits from the other. The title of dower is not strictly by inheritance, but by a succession originally called " infeudation," and the dow- ager at common law holds of the heir, as of the husband's seisin, an estate of freehold not of inheritance.' In the same way, tenant by curtesy consummate cannot be said strictly to have derived his estate of freehold for his own life from his wife by inheritance.' This section, therefore, can have no application to estates of dowagers or of tenants by curtesy. These are not in any event estates of inheritance, and not inherited. This section must therefore refer to estates derived by a husband ] or a wife from each oDher, by gift or devise, or from the relatives of the blood of the other.^" In such case, if the surviving spouse so last seised die intestate, leaving no heirs at law, the inheritance will now under this section pass to tlie heiirs of the other spouse.^^ The principle of this section might well be extended by statute to all cases of intestacy of married persons without heirs. Escheats at the present day are very harsh and anachronistic. ' See Fowler's. Real Prop. Law ' See under § 80, supra. (.3d ed), 174; I Prest. Estates, 472. i" § 80, Decedent Estate Law. 'Litt. § 393; Watkins, Descents, ^^igi, supra. 83; Co. Litt. 240b; § 190, Real Prop. Law. 4IO The Decedent Estate Law. § 92 § 92. Cases not hereinbefore provided for. In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law. Formerly § 291, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 291. Cases not hereinbefore provided for. — In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law.^^ § 291 was formerly i Revised Statutes, 753, section 16: § 16. In all cases not provided for by the preceding rules, the inheritance shall descend according to the course of the common law.i^ Comments on this Section. The common law, in so far as it is adapted by the State Constitution, still controls descent in this State in every case not specially provided for by the five rules of descent, given in these pages,^* or by the section regarding ille- gitimate succession, which may be regarded as an exception rather than a rule of descent.^^ The common law. which is thus made the " ultima ratio " of cases not specifically provided for, is not the Statute of Distributions of English Law, founded, as Black- stone says, on the 11 8th and 127th Novells of Justinian,^* but it is the pure Angln-f^nHa] 1a^ t > f succ ession, or that which is now termed the corfimon law of land relative to title by descent. Chan- cellor Kent wondered that the revisers did not adopt the principle of the Statute of Distributions instead of this ardhaic rule.^^ But the revisers of the Revised Statutes simply revised the eariier Statutes of Descent enacted in this State, and they had uniformly contained a like provision, consonant with the genius of all statu- tory reforms of the common law.** 12 Repealed by § 130, Decedent Es- ton, Rom. Law & Law of Eng., p. tate Law. 147, where this is denied. 13 Repealed, chap. 547, Laws of "4 Comm. 411. 1895. I'Laws of 1782, chap. 2; Laws of ^* Supra, pp. 364, 368, 370, 382, 404. 1786, chap. 12; i K. & R. 44; i R. L. 15 § 89, Decedent Estate Law. of 1813, pp. 52, 305. "2 Black. Comm. 517. Cf. Scrut- § 92 Descent. 411 The five new rules of descent above mentioned,^" prescribed by this statute, provide for (i) lineal descent in infinitum; (2) for the succession of ascendants, as far as the mother and father of intestate; (3) for collateral succession of brothers and sisters and their descendants in infinitum; (4) for collateral succession of uncles and aunts, both agnates and cognates, and their descendants in infinitum;'^" (5) grandparents. Beyond that point this statute makes no specific provision whatever, and by direction of this par- ticular section the common law then prevails. Thus, the rules of the common law, stated above,^^ apply to intestate succession after the descendants of uncles and aunts are exhausited, failing grand- parents. But independently of this section the common law would iiave prevailed in any event, had it not been expressly abrogated; so that this section of this act is simply declaratory. Common-law Rules Still in Force. After the lineals, ascend- ants, and collaterals, expressly indicated in this article as entitled to succeed in intestate successions,^" are exhausted, then the can- ons of the common law above given apply.^" Grandparents have recently been admitted into the Table of Descents.^* But in de- fault of grandparents it would seem that then the granduncles on the father's side become the stock of descent under the common- law ru'le that males are preferred, and so the male stock of the eldest granduncle will take to the exclusion of others in equal de- gree from the intestate.^" 19 See note 14, p. 410. 24 Chap. 106, Laws of 1904, amdg. 20 § 81, Decedent Estate Law. § 268. The Real Prop Law, now 21 Supra, pp. 352-354. § 88, Decedent Estate Law. 22 §§ 81, 84, 85, 86, 87, 88, Decedent 25 Hunt v. Kingston, 3 Misc. 309. Estate Law. Cf. Brown v. Burlingham, S Sandf. ^^ Supra, pp. 352-354- 418; and § 94, Decedent Estate Law. 412 The Decedent Estate Law. § 93 § 93. Posthumous children and relatives. A descendant or a relative of the intestate begotten before his death, but bom thereafter, shall inherit in the same manner as if he had been bom in the lifetime of the intestate and had survived him. Formerly § 292, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 292. Posthumous children and relatives. — A descendant or a relative of the intestate begotten before his death, but born thereafter, shall inherit in the same manner as if he had been born in the lifetime of the intestate and had survived him.^6 § 292 was formerly i Revised Statutes, 754, § 18: § 18. Descendants and relatives of the intestate, begotten before his death, but born thereafter, shall in all cases inherit in the same manner as if they had been born in the lifetime of the intestate, and had survived him.2? Common-law Rule. At common law a posthumous child could take by descent,''* but it was regarded as extremely doubtful how far he could take under the Statute of Wills, or by a limi- tation by way of contingent remainder.^" As a freehold could not be in abeyance by strict rule of the common law,^" an infant en ventre sa mere succeeded only at its actual birtli; the title mean- while devolving on the " heir presumptive." At its birth the child could enter on the ■prior occupant.^^ The Legislature of this State, at an early day, provided that postliumous children should inherit as if bom in the lifetime of the father.^- The Statute. It must be apparent that this section g;oes far- ther than the common law as stated by Watkins,^* for it expressly permits an abeyance of the seisin, as the child is now in esse only from the time of its birth for the purposes of descent.^* 26 Repealed by § 130, Decedent Es- cited ; Watkins, Descents, chap. 4. tate Law. Cf. McGilHs v. McGillis, 154 N. Y. 27 Repealed, chap. 547, Laws of S32. 1896. 30 See Fowler's Real Prop. Law 28 Watkins, Descents, 131; Challis, (3d ed.), pp. 28, 330, 340, zf/j. Ill, 126; I Black. Comm. 130; Mar- ^i Watkins, Descents, 131. Cf. sellis v. Thalhimer, 2 Paige, 35. Challis, iii, 126. 29 See Fowler's Real Prop. iLaw '2, Chap. 2, Laws of 1782; chap. 12, (3d ed.), p. 360, § 56; Steadfast ex Laws of 1786. dem., etc. v. Nicoll, 3 Johns, Cas. 18, ^^ Watkins, Descents, 131. 22; Mason v. Jones, 2 Barb. 229, 34 Mason v. Jones, 2 Barb, at p. 251, 252; Challis, III, and cases 252, affd., 3 N. Y. 375. § 93 Descent. 413 If a Child en Ventre sa Mere is not Born Alive. If a child en ventre sa mere be born dead, or in such an early state of pregnancy as to be incapable of living, it is to be considered as if it had never been bom or conceived, in so far as others claiming through such child are concerned.^^ Tenant by Curtesy. Where a child is delivered by the Csesarean operation and immediately dies, it is not " issue born alive" so as to entitle the father to curtesy.^" Children Born after the Execution of a Will. The Revised Statutes made extensive changes in the old law relative to devises. It abrogated the rule that a will passed only such estates as the testator had at the time of publication, and made a will act on subsequently acquired property, unless the intent w,as manifest that it s^hould not so operate.^' Children bom after the execution of a parent's will, where no provision or substantial provision was made for them, were to take, by statute, the same share of the real and personal estate of the parent which they would have taken had such parent died in- testate. Such children before did not take under the will or sub- ject to any of its provisions.^^ At common law the mere birth of children did not operate to revoke a will;^' hence such enactment. 35 Marsellis v. Thalhimer, 2 Paige, Pro., now § 28, Decedent Estate 35. Law; Matter of Rossignot, 50 Misc. 38 Marsellis v. Thalhimer, 2 Paige, 231 ; Stackelberg v. Stackelberg, 52 35. See Fowler's Real Prop. Law id. 22, 124 App. Div. 232 ; Obecny v. (3d ed.), 153. Obecny, 116 App. Div. 807; Worm- s' 2 R. S. 57, § 5, now § 14, De- ser v. Croce, 120 id. 287 ; Udell v. cedent Estate Law; Hodgkins v. Stevens, 125 id. 196; Tavshaujian v. Hodgkins, 123 App. Div. no; Toher Abbott, 130 id. 863. See all these V. Crounse, 57 Misc. 252, 260. See cases reviewed under §§ 26, 28, De- above at pp. 76, 77, under § 14. cedent Estate Law. Prior to the 38 2 R. S. 65, § 49, as amd. by chap. amendment of i86g, chap 22, the Re- 22, Laws of 1869, now § 26, Decedent vised Statutes did not apply to the Estate Law; Smith v. Robertson, 89 will of the mother. Cotheal v. Co- N. Y. 555; s. c, 24 Hun, 210; theal, 40 N. Y. 405, overruling Drischler v. Vander Henden, 49 N. Plummer v. Murray, 51 Barb. 201. Y. Super. Ct. 508 ; Rockwell v. '^ Cotheal v. Cotheal, 40 N. Y. 405, Geery, 4 Hun, 606; § 1868, Code Civ. 408. 414 The Decedent Estate Law. § 94 § 94. Inheritance, sole or in common. When there is but one person entitled to inherit, he shall take and hold the inheritance solely; when an inheritance or a share of an inheritance descends to several persons they shall take as tenants in common, in proportion to their respective rights. Formerly § 293, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 293. Inheritance, sole or in common. — When there is but one person entitled to inherit, he shall take and hold the inheritance solely; when an inheritance or share of an inheritance descends to several persons they shall take as tenants in common, in proportion to their respective rights.^" § 293 was formerly i Revised Statutes, 753, § 17 : § 17. Whenever there shall be but one person entitled to inherit, accord- ing to the provisions of this Chapter, he shall take and hold the inheritance solely; and whenever an inheritance, or a share of an inheritance, shall descend to several persons, under the provisions of this Chapter, they shall take as tenants in common, in proportion to their respective rights.^i Comment on Section. This section, taken from the Revised Statutes, was inserted in that revision in confoiTnity with the eair- Her statutes of 1782" and 1786,*' which had both provided that whenever estates descended to two or more persons they sihould take and hold as tenants in common. It will be observed that the section of the Revised Statutes, providing for the succession of all lineal descendants and making the inheritance then partible equally,^* did not provide that such lineals should take as tenants in common. Nor did the sections providing for collateral descent provide that collaterals should take as tenants in common.'*'^ Hence the original of this section was indispensable to regulate the kind of tenancy descendants and collaterals should take by descent.** Consequently, when the Revised Statutes extended col- « Repealed by § 130, Decedent Es- «l R. S. 751, § 2; § 82, Decedent tate Law. Estate Law. « Repealed, chap. 547, Laws of *^i R. S. 752, §§ 7, 8, 9, 10; id. 1896. 753, i§ II, 12, 13, nov/ §§ 86, 87 and *^ Supra, p. 350. 88, Decedent Estate Law. *^ Supra, p. 351. "Cole v. Irvine, 6 Hill, 634, 638. § 94 Descent, 415 lateral succession, beyond the acts of 1782 and 1786, so as to in- clude both uncles and aunts, and their descendants," it was necessary to provide specifically not only that they, if of the same degree, should inherit equal shares, but that they should hold as tenants in common. The original of this section does not, however, modify one prior section,*^ and where the common law now prevails this section has no application to the succession ; ** so that presumably great aunts (being sisters) would succeed, if at all, as coparceners f section 66 of the " Real Property Law," being limited to grants and devises.'^ " I R. S. 752, §§ 7, 8, 9, 10; id. 753, «Hunt v. Kingston, 3 M:sc. 309. §§ II, 12, 13, now §§ 86, 87 and 88, 6O2 Black. Coram. 187. Decedent Estate Law. 61 § 66^ chap. So, Consol. Laws. 48 1 R. S. 753, § 16, now § 92, De- cedent Estate Law. 4i6 The Decedent Estate Law. § 95 § 95. Alienism of ancestor. A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor. Formerly § 293, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 294. Alienism of ancestor. — A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor.62 I 294 was formerly i Revised Statutes, 754, § 22: § 22. No person capable of inheriting under the provisions of this chap- ter, shall be precluded from such inheritance, by reason of the alienism of any ancestor of such person.ss Comment on Section. The Revised Statutes first provided that no person capable of inheriting should be precluded from such inheritance by reason of the " alienism " of any ancestor.^* The original revisers intended thus to change wihat they call a harsh rule of existing law.'^^ The common law had in England been changed in this respect by the act 11 & 12 William III, chapter 6,'° which was not a part of the law of New York, certainly after the general act repealing those English statutes not then re-en- acted in a new form as laws of New York.-'^ Interpretation of this Section. This provision of the Revised Statutes, now here re-enacted, was held strictly prospective in operation ;^* to embrace lineal, as well as collateral ancestors.,^° and 52 Repealed by § 130, Decedent Es- 339; Levy v. McCartee, 6 Pet. 102, tate Law. 109, no; Jackson v. Fitzsimmons, 10 53 Repealed, chap. 547, Laws of Wend. 9 ; Banks v. Walker, 3 Barb. 1896. Ch. 438, 446. "I R. S. 754, § 22; § 95, Decedent 68 Redpath v. Rich, 3 Sandf. 79; Estate Law. Jackson v. Green, 7 Wend. 333. K Note to chap. 2, part 2, R. S. ; ^ McCarthy v. Marsh, 5 N. Y. 263 ; vide infra. Appendix IL Lynch v. Clarke, i Sandf. Ch. 583, 56 C/. 25 Geo. n, chap. 40; Har- 637; Smith v. Reilly, 31 Misc. 701; grave, Notes 8a, Co. Litt. affd., Smith v. Smith, 70 App. Div. 67 Jackson v. Green, 7 Wend. 333, 286. § 95 Alien Ancestor. 417 estates derived ex parte materna as well as those derived ex parte paterna. While this section permitted citizens thereafter to inherit, notwithstanding they deduced title through an alien ancestor, yet it did not so change the course of descents as to enable one not an heir at law to succeed in the place of one living and debarred by alienage,''" or to permit aliens to inherit otherwise than as pro- vided by law."* Section Refers to Dead, not Living, Ancestor. This section refers to such alien ancestors as are dead, and not to those who are alive."- One cannot inherit in the place of a living person under this section."^ ''Ancestor " Embraces Collaterals. The term " ancestor," in this section, embraces collaterals, as well as lineals,®* and " ascend- ants " are under the statute treated as " descendants." "' Descent through Illegitimates not Aided by this Section. Where the mother of an illegitimate is an alien, and deceased, this section does not aid so-called brothers of such illegitimate to in-" herit from him, as the common law did not give inheritable blood to illegitimates."" The descent between brothers is immediate, and not through the parent."^ 60 McLean v. Swanton, 13 N. Y. Abb. Pr. (N. S.) 367, 370; Callahan 535; McCarthy v. Marsh, 5 id. 263; v. O'Brien, 72 Hun, 216. Cf. Stew- Redpath v. Rich, 3 Sandf. 79 ; Peo- art v. Russell, 91 id. 310. pie V. Irvin, 21 Wend. 128; Heeney ^3 McCreery's Lessee v. Somer- V. Brooklyn Benevolent Society, 33 ville, 9 Wheat. 354. Barb. 360, 368; McCormack v. Cod- " ^^^yo^ pp, 382, 395, 406 ; Renner v. dington, 109 App. Div. 741, 184 N. Y. Muller, 57 How. Pr. 229, 241 ; Mat- 467. ter of Reeve, 38 Misc. 409, 412. 61 See authorities cited. Fowler's 65 See chap. 106, Laws of 1904, Real Prop. Law (3d ed.), pp. 125, amdg. § 288, The Real Prop. Law, 126; Haley v. Sheridan, 46 Misc. 506, all now § 88, Decedent Estate Law. 190 N. Y. 331. 66 St. John V. Northrup, 23 Barb. 62 People V. Irvin, 21 Wend. 128 ; 25 ; and see § 89, Decedent Estate Luhrs v. Eimer, 80 N. Y. 171, 179; Law. Renner v. Muller, 44 N. Y. Super. 67 Supra, p. 388 ; Renner v. Muller, Ct. 535 ; Lerreau v. Davignon, 5 57 How. Pr. 229, 241. 2T 4i8 The Decedent Estate Law. § 95 Treaties. Section 10, Real Property Law, now enables aliens of a state or nation which confers like privileges on citizens of the United States to take, hold and convey real property in this State in the same manner, and with like effect as if such aliens were citizens.*' 68 See Fowler's Real Prop. Law (3d ed.), 106, 114; Fay v. Taylor, 31 Misc. 32. § 96 Advancements. 419 § 96. Advancements of real and personal estates. If a child of an intestate shall have been advanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceased, such child and his descendants shall not share in the estate of the intestate; but if it be less than such share, such child and his descendants shall receive so much, only, of the per- sonal property, arid inherit so much only, of the real prop- erty, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including- the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or edu- cating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest giyen by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, is an advancement. Formerly § 295, The Real Property Law (chap. 46, General Laws), chap.. 547, Laws of 1896: § 295. Advancements. — If a child of an intestate shall have been ad- vanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin ; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceosed,^^ such child and his de- '9 Spelled " deceosed " in Session Laws of i8g6, p. 622. 420 The Decedent Estate Law. § 96 scendants shall not share in the estate of the intestate; but if it be less than such share, sucli child and his descendants shall receive so much, only, of the personal property, and inherit so much only, of the real property, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; other- wise it must be estimated according to the worth of the property when given. Maintaining or educating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, is an advancement.'" § 29s was formerly i Revised Statutes, IzTj i 127, and I Revised Statutes, 754. §§ 23, 24, 25, 26. § 127. Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, within the provisions of the second Chapter of this Act.'i § 23. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin, according to law ; and if such advancement be equal or superior, to the amofunt of the share, which such child would be entitled to receive, of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share, in the real and personal estate of the intestate.'^ i 24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much only, of the personal estate, and to inherit so much only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.'^ § 25. The value of any real or personal estate so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise such value shall be estimated, according to the worth of the property when given.'* § 26. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement.'^ '" Repealed by § 130, Decedent Es- '^ Repealed, chap. 547, Laws of late Law. 1896. '1 Repealed, chap. 547, Laws of '* Repealed, chap. 547, Laws of 1896. 1896. '2 Repealed, chap. 547, Laws of '^ Repealed, chap. 547, Laws of 1896. 1896. 96 Advancements. 421 Some Account of this Enactment. The doctrine of " ad- vancements " by a parent, or person in loco parentis, sprang froml two sources, " equity " '° and the " Statute of Distributions " (22 & 23 Car. II, chap. 10).'' The chancellor long " favoured the heir," by analogy to the like legal doctrine, and consequently deprecated double portions to younger children, because they were at the ex- pense of the heir. In a State where real inheritances are now partible, the maxim " equality is equity " applies with greater force, and the equitable presumption, that a sum paid by a parent to a child is intended as an " advancement," or ademption, is very strong in favor of other children, equally entitled, whio receive nothing. The source referred to by Chancellor Kent as the sole origin of the New York statute regulating advances, viz., the English Statute of Distributions,'^ was re-enacted here in the year 1774.''* It was subsequently re-embodied in tlie first general revision of the laws of the State,*" anid thence continued in the Revised Statutes.*^ All siuch provisions are now in this act.*^ The Statute of Distributions had no reference to real estate,*^ and consequently, until the Re- vised Statutes, the general doctrine of " advancements," as applied to real property, could have stood only upon the general principles of equity.** By the old common law this doctrine certainly had '^ Spence, Eq. Juris. 427. Cf. Mess- man V. Egenberger, 46 App. Div. 46, 49- "4 Kent Coram. 417, 418; Beebee V. Estabrook, 79 N. Y. 246; Terry v. Dayton, 31 Barb. 519; §§ 96, 97. 98, 99, Decedent Estate Law. Cf. § 2733, Code Civ. Pro. But the custom of bringing personal estate into hotchpot is in London city older than the Statute of Distributions. Tomlins' Lyttleton, 307. 7822 & 23 Car. II, chap. 10, ex- plained by 29 Car. II, chap. 31, § 25; Terry v. Dayton, 31 Barb. 519, 523. "Laws of 1774, chap. 11. 80 2 J. & V. 71; Laws of 1787, chap. 38. 8I1 K. & R. 535 ; i R. L. 311,313; I R. S. 754, §§ 23, 24, 25, 26, supra, p. 420. *2§§ 96, 97, and 99, Decedent Es- tate Law; § 2733, Code Civ. Pro. 88 Real estate among coparceners was, however, brought into " hotch- pot " long before the Statute of Distributions. 2 Black. Comm. 190. 84 Parker v. McCluer, 5 Abb. Pr. (N. S) 97. Cf. 2 Black. Comm. 190; 4 Kent Comm. 419 ; Terry v. Dayton, 31 Barb. Si9. 523- 422 The Decedent Estate Law. § 96 no application to real property, except in the case of coparceners.^^ The Revised Statutes first applied tlie principle of the old Statute of Distributions to the descent of real estates as well as to the distribution of personal estates.^" The present section now regu- lates the entire subject of advancements out of real estate.*' Construction of this Section. The term "advancements" is strictly a technical one, and it is not the equivalent of " advances." ^' Advancements relate to dealings with children only, not with widows of intestates.*'' Advancements relate primarily to estates of intestates, not to estates of those who die testate.'^* The sections of the old Statute of Distributions, relating to " ad- vancements '' of personal estate,"" and this and the subsequent sec- tion of .the Decedent Estate Laiw, relating to " advancements " of real estate,"^ are to be read together, being in pari materia.^^ Where a man dies leaving a will disposing of a part only of his estate, this section has little application. It is also said, that it does not apply to partial intestacy."^ S5 Pratt V. Pratt, Fitzgib. 284; C/. Matter of Merritt, 86 App. Div. Terry v. Dayton, 31 Barb. 519, 522. 179. 86 Terry v. Dayton, 31 Barb. 519, ^'^^ Bowron v. Kent, igo N. Y. 422, 523. 432. 87 Hicks V. Gildersleeve, 4 Abb. Pr. •» §§ 98, 99, Decedent Estate Law ; T, 3; Parker v. McCluer, 36 How. § 2733, Code Civ. Pro. Pr. 301; s. c, s Abb. Pr. (N. S.) si §§ 96, 97, Decedent Estate Law. 97, 3 Keyes, 318; Thompson v. Car- 92 ggebee v. Estabrook, 79 N. Y. michael, 3 Sandf. Ch. 120, 127; De- 246, affg. 11 Hun, 523. '•cedent Estate Law, §§ 96, 97, 98, 99; 93 sir W. Grant in Walton v. Wal- ^ 2733, Code Civ. Pro. ton, 14 Ves. 324; Arnold v. Haronn, 88 Chase v. Ewing, 51 Barb. 597; 43 Hun, 288; Thompson v. Carmich- Bruce v. Griscom, 9 Hun, 280; Mess- ael, 3 Sandf. Ch. 120; Hays v. Hib- man v. Egenberger, 46 App. Div. 46, bard, 3 Redf. 28; Kent v. Hopkins, so; Bowron v. Kent, igo N. Y. 422, 86 Hun, 611; De Caumont v. Bo- 431, 432; Kintz V. Friday, 4 Dem. gert, 36 id. 382; Messman v. Egen- S40; Matter of Morgan, 104 N. Y. berger, 46 App. Div. 46, 51; Matter 74; Ebeling v. Ebeling, 61 Misc. of Turfler, i Misc. 58, 63; Bowron v. 537, 539- Kent, 190 N. Y. 422, 432. The doc- s' Matter of Morgan, 104 N. Y. 74. trines relating to " ademption of § 96 Advancements. 423 Interest is not allowed, as a rule, on property or sums, treated as " advancements." °* The question, whether property given to children by parents is an advancement or a gift, is a very troublesome one.'^ Application of the Doctrine of Advancements. The doctrine of " advancements " at the present time relates to property, real and personal, given in his lifetime by a parent, or one in loco parentis, to a child, or descendant in anticipation of a share which the donee would be entitled to receive if the donor die intestate."" It has no application in the division of estates of those who die testate."' The doctrine is often confused with the rules relat- ing to " advances " and satisfaction of legacies."* To some extent such doctrines are not dissimilar in application and in results, as they all relate to the principles which guide courts in charging beneficiaries with sums or property given, or advanced, to them in the lifetime of the donor. But the doctrine of " advancements " now relates wholly to charges to be made to heirs or next of kin in cases of intestacy only."' In England 'the doctrine of advancements was held to have no application to cases of partial intestacy, because the will showed an intention otherwise,^ and it has been since so 'held in this State.^ legacies" correspond to "advance- 216, affd., 108 N. Y. 535; Estate of ment," but regulate testate succes- Quinn, 2 Law Bull. 58, and see sions. I.angdon v. Astor's Exrs., 16 below under § 99, Decedent Estate N. y. 9, 33; Hine v. Hine, 39 Barb. Law. 507. "Advancements " apply only to ss See Arnold v. Haronn, 43 Hun, intestate successions. Burnham v. 278, 280; Camp v. Camp, 18 id. 217; Comfort, 37 Hun, 216, 218, affd., 108 Marsh v. Gilbert, 2 Redf. 465. N. Y. S3S. Cf. Matter of Merritt, ss Matter of Robert, in N. Y. 86 App. Div. 179. 372; Bowron v. Kent, igo id. 422, s* Matter of Keenan, iS Misc. 368, 433, 434. 372. Cf. Verplanck v. De Went, 10 1 Per Sir W. Grant, Walton v. Hun, 611; Ex parte Oakey, i Bradf. Walton, 14 Ves. 324. 281. 2 Thompson v. Carmichael, 3 SB Johnson v. Cole, 178 N. Y. 364, Sandf. Ch. 120; Arnold v. Haronn, 367. 43 Hun, 278; Bowron v. Kent, igo S6 Bowron v. Kent, 190 N. Y. 422, N. Y. 422, 432 ; Camp v. Camp, 18 431, 432; Kintz V. Friday, 4 Den. Hun, 217, and see cases cited in 540; Eisner v. Koehler, i id. 277. note 93, p. 422, under this section. " Burnham v. Comfort, 37 Hun, 424 The Decedent Estate Law. § 96 But certainly where a will only appoints executors and nothing more, this ruling ought to be now relaxed, so that it will not apply to such imperfect wills, and the statute on advancements be relevant.* This section refers primarily, it is said, to real property situate in this Staite, and not to that situated elsewhere.* Education and Maintenance of Minor Not Advancements, It being the duty of parents to maintain and educate tihieir minor children, sums thus expended are, by this section, declared not to be " advancements." ^ Where property is given to a child by a parent, and it appears that such gift was not intended as an " ad- vancement," the initention is controlling." Purchase of Real Estate by Father in Child's Name. Where a father pays the consideration and takes title to real estate in a child's name, the transaction is prima facie an " advanccm'ent." ^ But where a conveyance is made to the husband or wife of a child it is incumbent on those claiming that tha transaction is an " ad- vancement," to establish it by other evidence than the conveyance.* Sums Advanced for Child's Portion or Settlement in Life. Sums advanced for the purpose of portioning or settling a child 3 Hays V. Hibbard, 3 Redf. 28 ; vens, 10 Paige, 618 ; Piper v. Barse, Estate of Quinn, 2 Law Bull. 58; 2 Redf. 19; Palmer v. Culbertson, Thompson v. Carmichael, 3 Sandf. 143 N. Y. 213, 217; Smith, Real & Ch. 120; Terry v. Dayton, 31 Barb. Pers. Prop. 208. Cf. Smith v. BaJ- 579. Cf. Camp V. Camp, 18 Hun, com, 24 App. Div. 437; Jackson v. 217. Matsdorf, 11 Johns. 91 ; Proseus v. * McRae v. McRae, 3 Bradf. 199. Mclntyre, S Barb. 424 ; Matter of 5 § 96, Decedent Estate Law ; Vail Morgan, 104 N. Y. 74 ; Dyer v. Dyer, V. Vail, ID Barb. 69; Arnold v. 2 Cox, 92; i White & Tudor, Lead. Haronn, 43 Hun, 278. Cas. in Eq. 236 ; Goodeve, Pers. Prop. 6 Matter of Morgan, 104 N. Y. 74. 375. ' Fowler's Real Prop. Law (3d s Palmer v. Culbertson, 143 N. Y. ed.), 435; Sandf ord v. Sandf ord, 5 213, 217; Ex parte Oakey, i Bradf. Lans. 486, 491; s. c, 61 Barb. 293; 281. Cf. Piper v. Barse, 2 Redf. 19. s. c, 4 Hun, 753; Partridge v. Ha- § gS Advancements. 425 in life, are not " advancements " under this statute.^ But a con- siderable sum given a son to enable him to start business is prima facie an advancement; although small or inconsiderable sums given for spending money or traveling expenses are not.^" The Doctrine of Representation. Where grandchildren suc- ceed to the share of their parent by .representation, under the Stat- ute of Descents, they always take subject to sudi " advancements " as have been made to their parent by his parents or those standing to him in loco parentis}^ Posthumous Child. A child born after the making of the father's will can not recover of any brother or sister any portion of an advancement made by his father in his lifetime to such, brother or sister.^^ Value of the Property Advanced. The value of the property advanced shall be deemed to be that acknowledged by the child in writing, or else its value when the advancement is made.^^ Estates in remainder or reversion, conveyed as an advancement, in parent's lifetime, must be deelmed to be given at the time when they first vest in p>ossession.^* Where property has no value (stocks and bonds) at the time it is given, it is of course apparent that no deduction can be made.^-'' Circumstances may, however, enhance the value indefinitely, and somewhat alter the rule laid so boldly down in Marsh v. Gilbert. ^ § 96, Decedent Estate Law ; I s. c, 3 Keyes, 318 ; 3 Sharswood & Swinb. pi. 3, § 18, pi. 19; Morris v. Budd, Lead. Cas. Real Prop. 418; Boroughs, I Atk. 403 ; McRea v. Beebee v. Estabrok, 79 N. Y. 246, McRea, 3 Bradf. 199, 207; Miller v. affg. 11 Hun, 523; Bowron v. Kent, Coudert, 36 Misc. 44; Goodeve, Pers. 190 N. Y. 422. Prop. 37S. i2Sanford v. Sanford, 61 Barb. 1" Sandford v. Sandford, S Lans. 293. 480, 491 ; s. C, 61 Barb. 293 ; s. C, 4 13 § g6, Decedent Estate Law ; Hun, 753 ; Vail v. Vail, 10 Barb. 69, Palmer v. Culbertson, 143 N. Y. 213. 74 ; Kinyon v. Kinyon, 6 Misc. 584 ; 1* Palmer v. Culbertson, 143 N. Y. Kintz V. Friday, 4 Dem. 540. Cf. 213. McRea v. McRea, 2 Bradf. 199, 207. i5 Marsh v. Gilbert, 2 Redf. 465; 11 Parker v. McCluer, 36 How. Pr. Parker v. McCluer, 3 Keyes, 318, 321. 301; s. c, S Abb. Pr. (N. S.) 97; 426 The Decedent Estate Law. § 96 Beneficial Power. On general principles of equity, a beneficial power was always regarded as property of the donee.'^'' The Re- vised Statutes very properly provided that the grant of such a power and even a power of appointment should be deemed an " advancement," to a descendant, of course, meaning in a proper case.^' Gift or Advancement. Whether a transaction between a parent or one in loco parentis and a child is to be treated as a gift or advance, or as an " advancement," depends wholly on the cir- cumstances of each particular case. The law has apparently in such cases no favorite presumption which will prevail in all cases. But it raises presumptions either way, according to the facts and circumstances proven in the particular case.^" Advancements, how Proven. The declaration, oral or written, of a parent, his entries and charges in his books of account, or any explicit memorandtHn by him, are said to be proper evidence that payments to a child are " advances," or on a distribution " advance- ments," after proof that such child has received money from the parent.^^ The parol admissions of the child who receives the ad- vance are competent evidence against him to prove that the trans- action was lan advancement.^" The declarations of a testator are not, however, evidence in favor of the executor against children, to prove that the so-called " advancements " are loans.^^ Section to be Read with Others. The commentary on this section should be read in conjunction with that on sections 97 and 99 of this article. 18 1 Sugden on Powers, 27. hurst, 114 id. 512, 516; Bowron v. 1' I R. S. 737, § 127, now § 96, De- Kent, 190 id. 422, 432. cedent Estate. Law; Sanford v. San- "Hicks v. Gildersleeve, 4 Abb. Pr. ford, 61 Barb. 293, 298. i ; Palmer v. Culbertson, 143 N. Y'. 18 Camp V. Camp, 18 Hun, 217; 213, 217; Parker v. McCluer, 3 Keyes, Arnold v. Haronn, 43 id. 478; San- 318. Cf. Chase v. Ewing, 51 Barb, ford V. Sanford, 61 Barb. 293 ; Hine 597. V. Hine, 39 id. 507 ; Bell v. Cham- 20 Palmer v. Culbertson, 143 N. Y. plain, 64 id. 396; McRae v. McRae, 213, 216; § 96, Decedent Estate Law. 3 Bradf. 199; Marsh v. Gilbert, 2 21 Chase v. Ewing, 51 Barb. 597. Redf. 465; Beebee v. Estabrook, 79 Cf. Piper v. Barse, 2 Redf. 19; San- N. Y. 246, 254 ; Palmer v. Culbertson, ford v. Sanford, 61 Barb. 293, 302 ; 143 id. 213, 217; Ritch V. Hawx- Johnson v. Cole, 178 N. Y. 364. § 97 Advancements. 427 § 97. How advancement adjusted. When an advancement to be adjusted consisted of real property, the adjustment must be made out of the real property descendible to the heirs. When it consisted of personal property, the adjust- ment must be made out of the surplus of the personal prop- perty to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other. Formerly § 296, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 296. How advancements adjusted. — When an advancement to be ad- justed consisted of real property, the adjustment must be made out of the real property descendible to the heirs. When it consisted of personal prop- erty, the adjustment must be made out of the surplus of the personal prop- erty to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other.22 Comment on this Section. The Commissioners of Statutory Revision, in their report to the Legislature, stated that section 296 ■of the Real Property Law of 1896 was new to that revision, and drawn to correspond with the provisions of itlie Code Oif Civil Pro- cedure.^^ The Provisions of the Code of Civil Procediure, upon the adjustment of advances,^* were taken from the Revised Stat- utes,^° which, in turn, was a revision of the old Statute of Disitribu- tions.^" The Revised Statutes made express provision for the adjustment of advances out of real estate of an intestate. It has been stated that such provision was a new departure in prin- ciple, although this may be doubted, for by custom it was long anterior to that revision, and equity exercised some sort of juris- diction over advancements of real estate independently of statute.^^ 22 Repealed by § 130, Decedent Es- 262 R. S. 96, §§ 76, ^^, 78, 79. tate Law. 26 j r l 311, 313 ; 2 J. & V. 71, re- 23 Note to § 296, Appendix III, enacting 22 & 23 Car. II, chap. 10, as infra. explained by 29 id., chap. 31, § 25. 2< § 2733, Code Civ. Pro. Cf. 2 R. 27 gee above, p. 421, under § 96, S. 98, § 79. Decedent Estate Law. 428 The Decedent Estate Law. § 97 It is now very clear, under the present statute, that the section of the Code of Civil Procedure, relating to advancements of person- alty,^* and the sections relating to realty,-^ are to be read together.^* Advancements, how Adjusted. Whenever " advancements " have been made, the estate of an intestate now comes into " hotch- pot," ^^ and the heir must account for the value of the real prop- erty advanced as of the time when given, unless the value be acknowledged, in writing, by him, as provided for by the prior section of this act.''^ When the persons entitled to the real, and those entitled to the personal, estate are not the same, the real advances must be com- puted out of the real estate, and the advances of money or goods out of the personal estate.''^ The surrogate has jurisdiction to allow the advancements out of personal estate in a decree for dis- tribution.^* The adjustment may be made in an ejectment action, or in a partition suit, at least where it appears that the intestate left no personal estate."^ and even where it does not so appear,^' as the administrators are now necessary parties to a partition suit.^' So " advancements " to plaintiff may be set up as an lequitable de- fense, in an action of ejectment against the heirs of an intestate.'* Post-Testamentary Children. How far " advancements " are to be allowed in computing shares of a child born after the making of the parent's will, is considered in Sanford v. Sanford.'* Section 99, Decedent Estate Law. This section is to be read in conjunction with section 99 of the same act, as both relate to the same subject. 2' § 2733, Code Civ. Pro. a part 23 Terry v. Dayton, 31 Barb 519, now § 99, Decedent Estate Law. 523, 524. 29 §§ 96, 97, Decedent Estate Law. s* § 2733, Code Civ. Pro.; Matter 3° Beebee v. Estabrook, 79 N. Y. of Morgan, 104 N. Y. 74. 246, affg. II Hun, 523. 35 Parker v. McCluer, 3 Keyes, 318; 31 As to this term, see 2 Black. Palmer v. Culbertson, 143 N. Y. 213. Comm. 190. Cf. Terry v. Dayton, 36 Hobart v. Hobart, 58 Barb. 296. 31 Barb, at p. 523- " § 1538, Code Civ. Pro. 32 § g6, Decedent Estate Law ; Par- ss Bell v. Champlain, 64 Barb. 396. ker V. McCluer, 3 Keyes, 318. Cf. 394 jjun, 753, 61 Barb. 243. Marsh v. Gilbert, 2 Redf. 465; and see under § 99, Decedent Estate Law. § 98 Statute of Distributions. 429 § 98. Distribution of personal property of decedent. If the deceased died intestate, the surplus of his personal prop- erty after payment of debts; and if he left a, will, such surplus after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in manner following: 1. One-third part to the widow, and the residue in equal portions among the children, and such persons as legally represent the children if any of them have died before the deceased. 2. If there be no children, nor any legal representatives of thte, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provisions of this section. 3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or a sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars ; if the residue exceeds that sum, she shall receive in addition to the one-half, two thou- sand dollars; and the remainder shall be distributed to the brothers and sisters and their representatives. 4. If there be no widow, the whole surplus shall be dis- tributed equally to and among the children, and such as legally represent them. 5. If there be no widow, and no children, and no repre- sentatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal f epresentatives ; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants in whatever 430 The Decedent Estate Law. § 98 degree of those dead ; so that to each living brother or sister shall be distributed such share as would have been dis- tributed to him or her if all the brothers and sisters of the intestate who shall have died leaving issue had been living, and so that there shall be distributed to such descendants in whatever degree, collectively, the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descend- ants are of unequal degrees. 6. If the deceased leave no children and no representa- tives of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be dis- tributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters ; and if there be no widow, the whole surplus shall be dis- tributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters. 7. If the deceased leave a father and no child or descend- ant, the father shall take one^half if there be a widow, and the whole, if there be no widow. 8. If the deceased leave a mother, and no child, descend- ant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take one- half ; and the whole, if there be no widow. 9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and shall be entitled to letters of administra- tion in exclusion of all other persons. If the mother of such deceased be dead, the relatives of the deceased on the part of the mother shall take in the same manner as if the de- ceased had been legitimate, and be entitled to letters of administration in the same order. § 98 Statute of Distributions. 431 10. Where the descendants, or next of kin of the de- ceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal. 11. When such descendants or next of kin are of un- equal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right shall re- ceive equal shares, and those who take by representation shall receive the share to which the parent whom they rep- resent, if living, would have been entitled. 12. No representation shall be admitted among collaterals- after brothers and sisters descendants. This subdivision shall not apply to the estate of a decedent who shall have died prior to the time this act shall take effect May eight- eenth, nineteen hundred and five. (Thus amended by chap. 240, Laws of 1909, in effect April 22, 1909.) 13. Relatives of the half-blood shall take equally with those of the whole blood in the same degree ; and the repre- sentatives of such relatives shall take in the same marmer as the representatives of the whole blood. 14. Descendants and next of kin of the deceased, begot- ten before his death, but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him. 15. If a woman die, leaving illegitimate children, and no lawful issue, such children inherit her personal property as if legitimate. 16. If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in chapter eighteenth of the code of civil procedure ; but such surplus shall not, and shall not 432 The Decedent Estate Law. § 98 be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person. Formerly and after 1893, § 2732, Code of Civil Procedure. This section was amended by chap. 37, Laws of 1897; chap. 319, Laws of 1898; chap. 410, Laws of 1901 ; chap. 367, Laws 1903; chap. 539, Laws 1905: Section 2732. Order of distribution.— If the deceased died intestate, the surplus of his personal property after payment of debts; and if he left a will, such surplus, after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in manner fol- lowing : 1. One-third part to widow, and the residue in equal proportions among the children, and such persons as legally represent the children if any of them have died before the deceased. 2. If there be no children, nor any legal representatives of them, then one- half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provisions of this section. 3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above pro- vided, and to the whole of the residue if it does not exceed two thousand dollars ; if the residue exceeds that sum, she shall receive in addition to the one-half, two thousand dollars ; and the remainder shall be distributed to the brothers and sisters and their representatives. , 4. If there be no widow, the whole surplus shall be distributed equally to and among the children, and such as legally represent them. 5. If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives. 6. If the deceased leave no children and no representatives of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brother and sisters, or the representatives of such broth- ers and sisters. 7. If the deceased leave a father and no child or descendant, the father shall take one-half if there be a widow, and the whole, if there be no widow. 5 98 Statute of Distributions. 433 8. If the deceased leave a mofher, and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take one-half ; and the whole, if there be no widow. 9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and shall be entitled to letters of administration in exclusion of all other persons. If the mother of such deceased be dead, the relatives of the deceased on the part of the mother shall take in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order. 10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal. 11. When such descendants or next of kin are of unequal degrees of kin- dred, the surplus shall be apportioned among those entitled thereto, accord- ing to their respective stocks; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living would have been entitled. 12. No representation shall be admitted among collaterals, after brothers' and sisters' children. 13. Relatives of the half-blood, shall take equally with those of the whole blood in the same degree; and the representatives of such relatives shall take in the same manner as the representatives of the whole blood. 14. Descendants and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him.** CHAPTER 37. AN ACT to amend the code of civil procedure; relative to the right of inheritance of illegitimate children. Became a law, March 9, 1897, with the approval of the Governor. Passed, a majority being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section i. Section twenty-seven hundred and thirty-two of the code of civil procedure is hereby amended by adding thereto a new subdivision to be known as subdivision fifteen, and to read as follows: « This section of the Code of Civil chap. 686, Laws of 1893 ; § 2732, Procedure was taken out of the Re- Code Civ. Pro., was repealed by vised Statutes (2 R. S. 96, § 75) and § 130, Decedent Estate Law, when added to Part II of the Cpde by re-enacted in that law, § 98, supra. 28 434 The Decedent Estate Law. § 98 15. If a woman die, leaving illegitimate children, and no lawful issue,, such children inherit her personal property as if legitimate. § 2. This act shall take effect immediately.** CHAPTER 319. AN ACT to amend the code of civil procedure, relative to the succession to personal property. Became a law, April 19, 1898, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Subdivision twelve of section twenty-seven hundred and thirty- two of the code of civil procedure is hereby amended so as to read a& follows : § 2732. Subdivision 12. Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate. i 2. This act shall take effect September first, eighteen hundred and ninety- eight.*2 CHAPTER 410. AN ACT to amend the code of civil procedure relating to order of dis- tribution. Became a law, April 17, 1901, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section I. Section twenty-seven hundred and thirty-two of the code of civil procedure is hereby amended by adding thereto a new subdivision to be known as subdivision sixteen, and to read as follows: 16. If there be no husband or wife surwving and no children and no representatives of a child, and no next of kin, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this chapter;, but such surplus shall not, and shall not be construed to, embrace any per- sonal property except such as was received by the deceased from such hus- band or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person. § 2. This act shall take effect September first, nineteen hundred and one.''* « Repealed, § 130, Decedent Es- *^ Repealed, § 130, Decedent Estate tate Law; see § 91, General Con- Law. See § 91, General Construc- struction Law. tion Law. *2 Repealed, § 130, Decedent Estate Law. See § 91, General Construc- tion Law. § 9^ Statute of Distributions. 435 CHAPTER 367. AN ACT to amend the code of civil procedure, relative to the distribution of the estates of intestates. Became a law, May 6, 1903, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Subdivision five of section twenty-seven hundred and thirty-two of the code of civil procedure, is hereby amended to read as follows : S. If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives ; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any dead, to the brothers and sisters living, and the descendants in whatever degree of those dead; so that to each living brother or sister shall be distributed such share as would have been distributed to him or h^r if all the bothers and sisters of the intestate who shall have died leaving issue had been living, and so that there shall be distribution to such descendants in whatever degree, collectively, the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees. § 2. This act shall take effect September first, nineteen hundred and three.<< CHAPTER 539- AN ACT to amend the code of civil procedure, relative to the succession to personal property. Became a law. May 18, 1905, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section I. Subdivision twelve of section twenty-seven hundred thirty- two of the code of civil procedure is hereby amended to read as follows : Subdivision 12. No representation shall be admitted among collaterals after brothers and sisters descendants. § 2. This act shall not apply to an estate of a decedent who shall have died prior to the time this act shall take effect.' § 3. This act shall take effect immediately.^^ ** Repealed, § 130, Decedent Estate *^ Repealed, § 130, Decedent Estate Law; § 91, General Construction Law. See § 91, General Construc- Law. tion Law. 436 The Decedent Estate Law. § 98 CHAPTER 240. AN ACT to amend the consolidated laws, and the amendments to the code of civil procedure and to the code of criminal procedure, as reported by the board of statutory consolidation and as passed at the legislative session of nineteen hundred and nine, for the purpose of correcting various errors, inaccuracies and inconsistencies therein, and of supplying various omis- sions therefrom. Became a law, April 22, 1009, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : ********** Section 14. Subdivision twelve of section ninety-eight of said Decedent Estate Law is hereby amended to read as follows : 12. No representation shall be admitted among collaterals after brothers and sisters descendants. This subdivision shall not apply to the estate of a decedent who shall have died prior to May eighteenth, nineteen hundred and five. Original Statutes of Distribution. (22 & 23 Car. 2, c. 10.)" Section 5. All ordinaries and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following, that is to say, one third part of the said sur- plusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such' persons dying intestate, and such persons as legally represent such children, in case any of such children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made ; and in case any child, other than the heir at law, shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the «hare which will be due to the other children by such distribution as afore- said; then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate or where advanced in the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be esti- *6 The English statute is the original of the New York acts after 1774, see below p. 444, this section. § 98 Statute of Distributions. 437 mated; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. § 6. And in case there shall be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the widow of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them. , § 7. Provided that there be no representations admitted among collaterals after brothers' and sisters' children ; and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid and in no other manner whatsoever. (i Jac. 2, Cap. 17.) § 7. Provided also and it is further enacted that if after the death of a father any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and sister and the representatives of them shall have an equal share with her, anything in th.e last mentioned acts^' to the contrary notwithstanding. Historical Review. Before entering on the consideration of the Statute of Distributions, it may be well to review briefly the mode in which personal propeirty devolved by the common law on the death of its owner. Historical perspectives, if not too long or too confused, serve very well to bring out the proportions of stat- utes even when .they are modern. Indeed, the historical method of enquiry is now conceded to be that best adapted to most prob- lems in the jural sciences. Precisely when, in the rudimentary laws of England, lihe per- sonal ownership of goods and chattels, or movable property now called "personal property," was so protected by the law of the land as to amount to what we now call "property," is a mtich more complicated historical problem than it is sometimes thought to be. It will be very obvious to any reader, that mere abstract or incorporeal rights, " dhoses in action," will probably denote a still more developed jurisprudence than even the recognized legal *^ This refers to the prior act 22 § 25. See Fowler's Pers. Prop. Law and 23 Car. II, chap. 10, and the stat- (2d ed.), Appendix IV, "Statute o£ ute of Frauds, 29 Car. II, chap. 3, Frauds." 438 The Decedent Estate Law. § 98 ownership of movables. The very distinguished historians of the mediaeval law of England indicate that these and like problems were far from settled as late as the thirteenth century.** Certain is it, that the English conception of the transmission of a legal title to personal property on the death of its last possessor will be found to be later than the mere conception of the legal rights of. the living to enjoy it during life. These are very elementary state- ments, but they will serve to indicate the historical lines on which the growth of legal doctrines concerning the title and the devolu- tion of the ownership of personal property probably pursues in English law. That such problems possess great interest to his- torical jurists is shown by the numerous theories and essays on such subjects as " seisin " and " possession," which are important elements in the development of the modern law of property.*" All such problems are, however, too obscure for the purposes of mere illustration, and we pass them by. Precisely when the legal conoeption of ownership of movables was so fully developed in England as to connote the right to pass the title on at death to others by a last will or testament, and in default thereof by a settled schemie of succession, recognized in the tribunals administering justice, aire also larger historical problems than we need consider.'^'' Authentic history, comparatively more modern, shows us that both the power to pass on the title to mov- ables or chattels by last will, and the right of succession thereto in default of such will, were far from being settled during the two centuries following the Norman Conquest.^^ If we consider that the earliest legal use of the term " owner " dates from the year. 1340 and of the term "ownership" from the year 1583, we shall better realize that the " law of property," as now administered, is of comparatively recent date. The term " owner " is now correlative «8 2 P. & M. 148, 151. Holdsworth, 69, 78; Ames, The Dis- ■*9 Maitland's Mystery of Seisin, 2 seisin of Chattels, 3 Select Essays, Law Quar. Rev. 286, 481; Seisin of Anglo-American Law, 541. Chattels, I Law Quar. Rev. 324; The ^o See note 2, P. & M. 151, 152; 2 Beatitude of Seisin, 4 id. 24, 286 ; Pos- Holdsworth, Hist. Eng Law, 69. session in the Roman Law, 3 Law ^^2 Holdsworth, Hist. Eng. Law, Quar. Rev. 32; Holmes, Com. Law, 78, 81, 83. Lecture VI; 2 P. & M. chap. IV; 2 I 98 Statute of Distributions. 439 with an absolute domiinion, and " ownerslhip " now indicates in some way a dominion which transcends the span of a life. But a power to dispose of property without limitartion as to amount, and an absolute legal right to succeed to the whole on the death of an intestate, are comparatively modern. As late as the reign of Henry II (A. D. 1154-1189) a man could dispose, anywhere in England, of only a third part of 'his goods by his last will: such restriction was probably then due in part to some arbitrary asser- tion of a suiperior jurisdiction, and in part due to a remnant of family Law, perhaps a counterpart of the Roman legitim, which prescribed the right of children and dependants to succeed.°^ What- ever the origin of the restriction may be, tJhe restriction itself is always admitted by English lawyers. ^^ If we remember the con- temporary influence of the Mediaeval Church, the right of a testator to dispose of even a third was so much limited by considerations pro salute animce as to be far from free.^"' With these; brief indi- cations of the conditions prevailing in England prior to Magna Charta of 1215, we are now prepared to enter on the recognized changes which terminate in the existing law. ' Magna Charta of 1215 provided that, " If any freeman dies in^ testate his chattels shall be distributed by the hands of his next kinsfolk and friends under the supervision of the Church, saving to every one of the debts owed to him by the dead." °° Thence- forth the Church asserted in some way the right to supervise the distribution of the personalty of intestates.'" The Statute of Westminster'^ charged the payment of debts on the third which the ordinary bad destined to pious uses, insitead of on the parts of the wife and children.'" A statute of 1357, originated the office of administrator,'" and it commanded the ordinaries to appoint the nearest relatives or friends of the intestate to administer his goods and recover debts. Administrators were to be accountable to the 52 These restrictions lasted until re- ^6 2 P. & M. 324. <:ently in the Province of York and 67 A. D. 1285. in London, England. I Williams on ^8 Scrutton, Rom. Law and Law Executors, 3. of England, 168. 63 1 Williams on Executors, 2. 683 Edw. Ill, chap. 11; White's '* See Introduction, pp. 19, 23. Outlines of Legal Hist. 166. 66 Cap. 27. 440 The Decedent Estate Law. § 98 ordinaries as executors were in the case of testaments. The ordi- nary thereafter appointed one of the next of kin as administrator to distribute the effects in such proportions as the Church, follow- ing the system of the civil law, should direct.*" The act also gave power to bring actions in the King's courts as well las in the ecclesiaatical courts, thus making the system more secure.*^ 'Remedies against administrators given by the King's courts were by no means complete, until at the end of the i6th century it was definitely decided that executors and administrators could be sued by the action of assumpsit."^ The prerogative court of the Archbishop, which dealt with wills and intestacies, was established in 1443. After the Reformation, owing to the refusal of the com- mon-law courts to enforce the directions of the ordinaiy, or the bonds which he took from administrators for the due performance of their duties, the powers of the ordinary became useless,®^ and this unsatisfactory state of things resulted in the Statute of Dis- tributions."* It will be recalled that the ecclesiastical courts had no power to enforce their judgments, excepting by excommunica- tion."^ This once formidable process, at the Reformation became powerless in England, except, perhaps, to a limited extent in the in- stances of clerical persons. Construction of the Statute of Distributions (22 and 23 Charles II). The changes introduced by the Statute of Distri- butions in the former law, and the subsequent construotion of that statute, should be briefly mentioned before we proceed to consider the history of the statute in New York. Prior to the Statute of 21 Hen. VIII, which gave administration to the next of kin, the ordi- "1 The determination of the nearest ^^ i Holdsworth, Hist. Eng. Law, of kin entitled to administer was 398. reached on the principles of the Civil- ^^ Coote, 55 ; i Holdsworth, Hist, ians and not on that of the Canon- Eng. Law, 398; Scrutton, Rom. Law ists. 2 Black. Coram. 208, note, 504, and Law of England, l68; Goodeve, 51s; Sweezey v. Willis, i Bradf. 49S, Pars. Prop. 373. 497. Cf. Matter of Marsh, 5 Misc. "22 and 23 Charles H, chap. lo, 428, 429. amended i James H, chap. 17. 81 3 Edw. in, chap. 11; Coote, 58; ^^ z Black. Comm. loi. Scrutton, Rom. Law and Law of England, 168. § 98 Statute of Distributions. 441 nary granted the administration to whomsoever he pleased. After 21 Hen. VIII, if there were persons of equal kin, whichever took out administration was entitled to the surplus. For this reason, among others, the Statute of Distributions"" was made in order to prevent injustice, and to oblige the administrator to an orderly distribution."" It is unnecessary to consider at length the ancient and prior order of distribution, called the rule of "pars ration- abilis," "^ by which ' one-third of intestate's estate was assigned to the widow, one-'third to the children, and one-third to the ad- ministrator."^ As customs of York and London this ancient order was recognized even by the Statute of Distributions, which other- wise superseded it in the country at large. The best opinion is that the provisions of the Statute of Distributions of 1670, as to the rights of wives and children and the rules as to those children who had been advanced, followed closely the old customary law.^" Before the amendment to the Statute of Distributions in the reign of James 11,'^ the mother of one, intestate without wife or child, took all, and his brothers and sisters nothing. But that amendment remedied this wrong, " lest the mother marry again and take all to a second husband." '^ It will be remembered that the old Statute of Distributions re- ferred only to a succession to goods and chattels or personal prop- erty, and that it had no reference to the personal property of married women; for at that time, her goods, chattels and things in action became the property of the husband by the fact of her marriage. The comimon-law rule which excluded the half blood from tak- ing real property by descent had no application to a succession, under the statute, to goods and chattels.' . 73 6622 and 23 Charles II, chap. 10, 443; citing Palmer v. Allicock, 3 explained by 29 Charles II, chap. 3, Mod. at p. 61. so as to except estate of femes '^ i James II, chap. 17. covert. '2 4 Burn's Ecc. Law, 546. See "Stanley v. Stanley, i Atk. 458. below under this section, Tit. 682 Black. Comm. 518; 3 Holds- "Mother." worth, Hist. Eng. Law, 434. '^ Watts v. Crook, 2 Vern. 124; 69 See above pp. 23, 439. Show P. C. 108 ; 4 Burn's Ecc. Law, '03 Holdsworth, Hist. Eng. Law, 553. 442 The Decedent Estate Law. § 98 The construction of the Statute of Distributions relative to the rights of the widow and the issue of intestate gave very little trouble. Lineal succession is always simple. As usual, the vexing questions on the statute arose in regard to an equal succession by kindred more renipte from the intestate. The notable contest be- tween the grandpafenre and the brothers of an intestate who died without issue, a wifio% Vr a mother, was decided in favor of brodi- ers to the exclusiornot Vie grandparents, but only after much dis- cussion, in which Vhe methods of computing the degrees of consanguinity were much considered.'^* The difference between the civil and the canon laws in this respect is explained in Mr. Chris- tian's note to Blackstone's Commentaries."'' The Civilians take the sum of the degrees in both lines to the common ancestor. The Canonists take only the number of degrees in the longest line. The common law follows the Canonists as to real property and the Civilians as to the right to administer and distribution of personal property.'" It would seem rather that the common law followed a parentelic scheme in the determination of those entitled to take real property by descent," while the Statute of Distributions govern- ing personal property was based on the gradual scheme of the Civ- ilians." At the present time in this State, the present Statute of Distributions, now embraced in this section, is based on a grad- ual scheme; but the present Statute of Descents has become only partly gradual ;'° for it remains partly parentelic whenever the common law is applicable.'" The resemblance o.f the gradual scheme of 'the Statute of Dis- tributions to the Roman law, after the 11 8th and 127th novells of Jiustinian, is noticed by Blackstone, and its plan of bringing ad- vances into hotchpot is stated by him to be derived from " collatio bonorum " of the Roman law.*^ But if the Statute of Distribu- '4 4 Burn's Ecc. Law, 548, 549. " See above p. 383, under § 86. 75 2 Black. Comm. 208, 504, 515. '^2 Black. Comm. 504, 515; i Wil- 78 Hunter's Rom. Law, 830 ; Amos, liams on Executors, 276. Rom. Law, 283 ; 2 Black. Comm. 206, '^ Matter of McMillan, 126 App. 504, SIS, and Mr. Christian's Note, Div. is8, 163. id. p. 208 ; Lord Hardwicke in m See above pp. 380, 383, and § 92, Evelyn v. Evelyn, 4 Burn's Ecc. Decedent Estate Law. Law, S48; Matter of Marsh, 5 Misc. *i2 Black. Comm. 516, 517; Matter 428, 429. of Davenport, 172 N. Y. at p. 457. § 98 Statute of Distributions. 443 tions has points of similarity to Justinian's novells, it has also great points of dissimilarity to the Justinian scheme.*^ Enough has been now stated to show, at least, that the Statute of Distributions enforced to some extent those ancient English customs which gave the widow and children distributive shares of the estates of intestates.'^ The rights of collateral next of kin were probably due wholly to the Statute of Distributions.** Statute of Distributions in New York, As the English Stat- ute of Distributions*^ fills an important place in New York, and in the jurisprudence of the common law generally, it has been in- serted at length under this section.*^ As the Statute of Distribu- tions was enacted in England only in 1683, or after New York had a settled government of its own, ex propria vigore it did not extend to this province, as New York was not named in the stat- ute." The Laws of the Duke of York set in force here in 1665 had long before provided for the administration of the estates of intestates in New York: "After payment of their debts the sur- plus was to be equally divided between the widow and children, viz. : one-third to the widow and the other two-thirds amongst the children, provided the eldest son should have a double portion, and where there were no sons the daughters should inherit as copar- ceners, and if any of the children happen to die before it come to age his portion was to be divided among the surviving children." *' This singular law may have been modeled after some familiar local usage in England. Such was often the case. But this law cer- tainly did not altogether supersede the Dutch rules of inheritance which had been expressly reserved to the ancient Dutch inhabit- ants by the Articles of Capitulation of 1664.*" The probably real 824 Burn's Ecc. Law, SSS; Hun- s* Duke's Laws, Tit. "Administra- ter, Rom. Law, 864. tion " i Col. Laws of N. Y. 10 ; ^* Crabb, Hist. Eng. Law, 526. Grolier-Bradford's N. Y. Laws of ^ Cf. Ferrie v. The Public Admin- 1694, p. 72. istrator, 3 Bradf. at p. 262. 89 gee Introduction to Grolier- 85 22 and 23 Charles H, chap. 10, Bradford's N. Y. Laws of 1694; amended i James H, chap. 17. Fowler"s Real Prop. Law (3d ed.), 86 Supra, p. 436. 55, 68. 8' I Black. Comm. loi, 108, 109 ; Fowler's Real Prop. Law (3d ed.), 68. 444 The Decedent Estate Law. § 98 reasons for the Duke's Law on "Administration " *° have been stated in our Introduction."" After 1685 when the Duke of York ascended the throne, the commissions of the Governors of the Province regulated the exer- cise of the ecclesiastical jurisdiction in New York. Wills and the supervision of the administration of the estates of intestates, it will be remembered, were embraced in this jurisdiction.'^ The cel- ebrated act of the Colonial Assembly, enacted in 1692, was a mere brutum fulmen and only confirmatory of the lawfully delegated jurisdiction."- It is highly probable that after the passage of the Statute of Distributions in England, the courts of the Province invested with ecclesiastical jurisdiction acted on that statute as if it were de facto and de jure a law of the Province of New York."^ We well know that they did so in the case of the Statute of Frauds which did not extend here,"* and that the con- sequent uncertainty about the operation of late English acts of parliament in New York was much complained of in the Province before it achieved its independence of the Crown."° The manner in which the ecclesiastical jurisdiction was rightfully exercised in New York during the colonial epoch has been briefly but suffi- ciently reviewed in our Introduction."" In 1774, shortly before the dawn of the war for independence,, the Legislature of New York at last re-enacted the English Stat- ute of Distributions,"^ and almost in the same words."* It is obvious from this re-enactment at this particular time, that there had been some dispute concerning the proper rules regulating dis- tribution of intestate's estates in New York. Some ordinary had been capricious; the local heir had complained, and the Legislature 10 Supra, p. 33. ** See Fowler's Real Prop. Law- si See Introduction, pp. 33, 34, (3d ed.), 879. supra. 95 See Hist., Law of Real Prop, in 92 See Introduction, p. 34. N. Y., 54, 55, and Introduction. 93 This important matter is not Grolier-Bradford's N. Y. Laws of touched on at all where we should 1694, p. xcvi. most expect it. See Introduction, 96 Supra, pp. 32-34. Redfield on Surrogates, and also 9722 and 23 Charles II, chap. 10, Judge Daly's " Surrogate's Courts of as amended i James II, chap. 17. New York;" Matter of Brick's Es- 98 Chap. XI, Laws of 1774; 5 Col. tate, IS Abb. Pr. 12. Laws of N. Y. 614. § 9^ Statute of Distributions. 445 evidently settled the doubt by an exact re-enactment of the Eng- lish Statute of Distributions. From its date it is hardly probable that this act of 1774 received the formal assent of the Crow^n. But the time was fast approaching when either the assent or the dissent of the Crown was quite immaterial to legislation in New York. During the long war for independence the act of 1774 was, no doubt, enforced " within the lines,'' and probaibly also in the southern tier of counties which remained British until the definitive treaty of peace; for there was nothing about the Statute of Dis- tributions calculated to incur the hostility of the " loyalist " in- habitants in the British sphere. Indeed, as before stated, the prin- ciples of the English statute were probably acted on in New York by most ordinaries soon after the accession of James II. It will be perceived that with the year 1774 the inquirer has at last reached terra Hrrna, where he finds that the local Legisla- ture of New York has successfully asserted its authority to be re- garded as the real source of the Statute of Distributions. -Soon after the peace, the new State government set about revising all the statute law adopted by the first Constitution of the State,"" and one of the first acts revised was the Statute of Distributions.^ It was then necessary to place the courts exercising the old ecclesias- tical jurisdiction on a new foot, and this was accompHshed by the same act.^ The new act of 1787 was almost a counterpart of the English Statute of Distributions, and it added the amendments thereto made in the reign of James 11.^ From 1787 to the pres- ent time the course of legislation on this subject of distributions is clear. The Statute of Distributions oi 1787 passed into the re- vision of 1801 made by Kent and Radcliffe* and into that of 1813, made by Van Ness and Woodsworth.^ It was next revised, in that very comprehensive revision of 1830, known par excellence as the Revised Statutes.^ Thence the Statute of Distributions was taken in 1893, by an amendment of that year, into the second part of the Code of Civil Procedure, which had attempted to deal with 99 Chap. 35, Laws of 1786, i J. & 3 chap. 17, i James II. V. 281. 4 I K. & R. S3S, 538, § XV. iChap. 38, Laws of 1787; 2 J. & ^ j r l. 311, 313, § xvi. V. 71. 62 R. S. 96, 97; 2 Kent Comm. 2 See Introduction, p. 35, supra. 426. 446 The Decedent Estate Law. § 98 the whole subject of surrogates' jurisdictions and surrogates' laws/ The latest revision of the statutes (The Consolidated Laws of 1909) has now transferred the Statute of Distributions to the section of the Decedent Estate Law now under consideration in these pages.* Such is the local history of the Statute of Distributions. The Revised Statutes. The revisers of 1830 found the Eng- lish Statute of Distributions substantially re-enacted in this State by the course of legislation just indicated. They agreed with Lord Hardwicke, that it seemed to be " very incorrectly penned." The revisers, therefore, conformed the Revised Statutes to the later de- cisions on the act, but in other respects they professed to make no alterations in principle." They suggested that the Legislature amend the statute so as to provide, that if the deceased left a widow but na issue and no next of kin entitled to share in the personal property, it should all pass to the widow, and this amendment was enacted.^* They also proposed that posthumous children should take in all cases, and this proposal was also adopted.^^ Otherwise, as the re- visers stated, the Statute of Distributions of the reign of Qiarles II and James 11 was not altered in principle.^^ That they have not succeeded in removing some defects which Lord Hardwicke noticed in the frame of the original Statute of Distributions, modei-n cases demonstrate. The Statute of Charles II had provided that there should be no representation admitted among collaterals after brothers' and sisters' children,^^ and this important provision the Revised Stat- utes continued.^' Taking by Representation. Persons taking by representation always take in reference to a prior class. If there are none of ' §§ 2732, 2733, Code Civ. Pro., " i R. S. 97, § 75, subd. 13. This added by chap. 686, Laws of 1893. was probably the law before. 8 See § 98, supra. 12 Reviser's Note 32, Appendix II, 9 See Revisers' Note No. 32, Ap- infra; 2 Kent Comm. 426; Matter oi pendix II, infra; 2 Kent Comm. 426, Marsh, 5 Misc. 428. note. 13 See above p. 437. i»i R. S. 96, § 75, subd. 3. "2 R. S. 97, § 75, subd. 11. § 98 Statute of Distributions. 447 that class in existence their descendants do not take by representa- tion, but per capita, and as next of kin according to degree.^° Legal Theories Concerning the Statute of Distributions. The legal theories upon which the Roman law administered a succession, ab intestato, by a juristic continuation of the persona of the an- cestor, are in Anglo-American law worked- out through legal the- ories relating to both the heir-at-law and the administrator.^" We find a faint reflection of these recondite theories at the threshold of the modern case law bearing on the present statute, for there can be no legal distribution of the estate of an intestate without the appointment of an administrator.^^ To some extent, in modern legal theory, the persona of the intestate continues in the aidminis- trator, and the distributees take title, by relation, from the dead per- son himself. But by some jurists the administrator is regarded as the mere agent of the surrogate or ordinary to sequestrate and liquidate the goods and chattels of the deceased, and then .to dis- tribute the surplus according to law.^^ These divergent concep- tions of administration lead to different results: by the former the family rights are paramount; by the latter, the State is in supreme control and rights of successors emanate from it alone. But according to either theory administration must precede distri- bution, except where the husband is sole successor to his wife's per- sonalty. Then no administration is necessary.^^ It is obvious that where one person succeeds there can be no distribution even though there may be an administrator.-" In the course of observing the development of the office of ad- ministrator, we shall see that the rules of law in regard to his 15 Adams v. Smith, 20 Abb. N. C. Supp. 78; Ferrie v. Public Adminis- 60, and note, p. 61 ; Matter of South- trator, 3 Bradf. 249, 262. worth, 6 Dam. 216, 217 ; Fletcher v. i* § 2719, Code Civ. Pro. ; Lowman Severs, 30 N. Y. St. Rep. 826 ; Hill v. v. Elmira, C. & N. R. R. Co., 85 Nye, 17 Hun, 457, 459- See below Hun, 188. under this section pp. 451, 453. i' See below under § 100, Decedent 15 See Holmes, Com. Law, Lecture Estate Law, and 29 Car. II, chap. 3,. X; Terry, Leading Principles of § 25; 2 R. L. 314, § 17; 2 R. S. 75,, Anglo- Amer. Law, pp. 22, 32, 38; § 29. Amos, Science of Law, 183, 184; ^"3 P. Wms. 50; 4 Burn's Ecc. Holland, Jurisprudence, 136. Law, 530. "In re Lane's Estate, 20 N. Y. 448 The Decedent Estate Law. § 98 powers and liabilities tend to be assimilated to the like rules govern- ing executors.-^ Both tend to become mere officers of the court, such as was the former. " ordinary." To assert that the right of the immediate family to share in the personalty of an intestate is due wholly to statute is in effect to give a life estate to the dead. While this theory is popular at present and at the root of all death and succession taxes, it has little place in the past economic history of the civilized world. Law of Last Domicile of Intestate Governs Distribution. Under former sections of this act " domicile " has been defined with reference to the authorities.^- It was a postulate of the com- mon law, that movable, or personal, property has no situs or visible locality, but is subject to the law which governs the person of the owner, with respect to the transmission of title to it by succession.^' This postulate of the common law became the law of this State by its express constitutional adoption. Consequently the law of the in- testate's last domicile now governs tlie distribution of his personal property.^* Time for Fixing Distribution. The heirs at law and next of kin of an intestate are determined as of the date of his death for purposes of partition and distribution.^" Law Governing Distribution. The statute governing distri- butions is the law actually in force at the time of the intestate's death, and not that in force when distribution takes place.^^ 21 See 3 Holdsworth, Hist. Eng. Mayor, etc. of New York, 2 Sandf. Law, 440, and particularly Tomlins' Ch. 173; Burr v. Sherwood, 3 Law Diet., tit. Executors, iv. Bradf . 85 ; The Public Administrator 22 See above under §§ 23, 24, 44, v. Hughes, i id. 125 ; Matter of Rup- 47, Decedent Estate Law. pauer, 15 Misc. 654, affd., 9 App. 23 § 380, Story, Conf. of Laws; Sill Div. 422; Moultrie v. Hunt, 23 N. Y. V. Worswick, i H. Black. 690. 394, 403; Dammert v. Osborn, 140 2*'§ 47, Decedent Estate Law; 2 id. at p. 46. Kent Comm. 428 ; Holmes v. Remsen, 26 Clark v. Cammann, i6a N. Y. 4 Johns. Ch. 460; 20 Johns. 229, 254; 315; Grinnell v. Howland, 51 Misc. Shultz V. Pulver, 3 Paige, 182, affd., 132, and cases there cited. II Wend. 361; In re Wither's Es- 26 Matter of McMillan, 126 App. tate, 15 N. Y. Supp. 133; Vroom v. Div. 155. Vasn Home, 10 Paige, 549; Suarez v. § 9^ Statute of Distributions. 449 Statute of Distributions Applies only to Surplus after Debts Paid. The Statute of DistributioniS, now contained in the pres- ent section, relates only to the surplus of personal property remain- ing after the payment of debts.^^ The administrator must first pay the debts of intestate, in an order prescribed by law,^* before he distributes the surplus under this section of the Decedent Estate Law. Intestates. The Statute of Distributions controls, not only the property of those who die intestate, but also undisposed of property of those who die partly testate and partly intestate.^® It now relates to estates of women, as well as to estates of men.^" Who Entitled to Share in the Distribution. The lists of those originally entitled to share in the distribution of the personalty of intestates has been, by recent statutes of this Stat-e, artificially aug- mented by the inclusion of both adopted children and children born out of wedlock. These new classes of distribution have accord- ingly to be reckoned with in any scheme of distribution. Adopted Children. Children by adoption are now by statute «ntitled to a distributive share of the personalty of their parents by adoption. ^^ Illegitimates. Illegitimate children are treated by statute as of the blood of the mother only, except in the instance referred to in the succeeding paragraph. They take her personal property as if legitimate.°^ " § 98, Decedent Estate Law. 3" Kintz v. Friday, 4 Dem. 540, 28 § 2719, Code Civ. Pro. 545- 29Lefevie v. Lefevre, 59 N. Y. 431, si § u^^ Domestic Relations Law, 447; Sheldon v. Button, 5 Hun, no; See above pp. 359, 360, under § 81, Canfield v. Crandall, 4 Dem. in; Decedent Estate Law. Cf. Smith v. Matter of Devoe, 107 App. Div. 245 ; Allen, 161 N. Y. 478, and a valuable Matter of Coolidge, 85 id. 295 ; note, 29 Abb. N. C. 49. Doane v. Mercantile Trust Co. 160 ^^ Chap. 37, Laws of 1897, now N. Y. 494; Clark v. Cammann, 160 subd. 15, § 98, Decedent Estate Law. id. 709; Brown v. Richter, 25 App. Div. 239; Matter of Ebbets, 43 Misc. 575- 29 450 The Decedent Estate Law. § 98 Children Legitimated per Subsequens Matrimonium. By an act of 1895, the Legislature set at rest the long dispute between the Canonists and the common lawyers, relative to the effect of a subsequent marriage on the status of children born prior to the marriage.'*'' The work of the Barons at Merton, who in the year 1235 rejected it, was in New York in 1895 undone.^* But it was nobly undone, as it gave effect to principles which protected the innocent and unfortunate. Such children are now by statute legitimated by the subsequent marriage of their parents and enti- tled to share in a distribution of their intestate parent's personalty.'** Not only that, but their status for all purposes becomes that of legitimate children.^" Posthumous Children. Posthumous children were prior to the Revised Statutes clearly entitled to a distributive share of the father's estate, for in the eye of the law they were in esse.^^ The revisers of the Revised Statutes, notwithstanding Lord Hardwicke's judgment in 1740, that a posthumous sister was entitled,^* did not think it clear, how far the rule applied, and they consequently re- ported a new section to give effect to it in all cases.'^ This pro- vision is now re-enacted in the present section of this act.*" The burden of proof is on one claiming through a posthumous child to show it was born alive.*^ Half-Blood. The half-blood were admitted to administration after the statutes compelling the ordinaries to depute the adminis- 33 Chap. 531, Laws of 1895, made 'TBall v. Smith, 2 Freem. 230; 2 § 19, chap. 272, Laws of 1896, P. Wms. 466; Barnet v. Man, i amended chap. 725, Laws of 1899; Ves. Sr. 156. chap. 742, Laws of 1907, and all now ^s Wallis v. Hodgson, cited 4 consolidated in § 24, Domestic Re- Burn's Ecc. Law, 561. lations Law ; Miller v. Miller, 91 N. 39 gee Revisers' Note 32, Appen- Y. 315. dix II, infra; 2 R. S. 97, § 75, subd. ^ See under § 89, Decedent Estate 13. Law, pp. 399. 400. *o^ 98 (subd. 14), Decedent Es- 35 § 24, Domestic Relations Law. tate Law. 36 See above pp. 399, 400, under § Ibid, supra. Ill, 120; Parker v. Linden, 44 Hun, 454 The Decedent Estate Law. § 9^ Minor orphans are also entitled to the benefit of certain house- hold effects on a distribution, unnecessary for us to consider at largeJ^ If intestate leave only grandchildren, all his children having pre- deceased him, the grandchildren do not take by representation, but per capita, all being of equal degree.'^ Such also would be the case with respect to the great-grandchildren of intestate, if all of his children and grandchildren had predeceased him.'^ Husband. The rights of a surviving husband to a distributive share of the intestate wife's personalty are provided for in a sub- sequent section of this aot.^* Father. If an intestate leave a father and a hilbfeanid, or a wife, surviving, but no descendant, the father takes one^haBf of the surplus after payment of debts. If the intestate have a father, but no husband or wife and no descendants, the father takes all.'' Mother. Under the ancient law of intestate succession, prior to the Statute of Distributions, the mother was accounted one of the next of kin to her child, although for a time it was held that she was not next of kin for the purpose of taking out letters of administration.'"' But this decision was corrected.'^ Under the original Statute of Distributions if the intestate died without father, wife, or descendant, the mother of intestate had all, and the brothers and sisters of intestate took nothing.'-' This was soon corrected by an amendment, making the mother share equally with her surviving children.''' This amendment expressly became the law of New York in 1774, and probably before.'" Under the Revised Statutes of this State and the present act, if the intestate leaves a mother and a widow, or a husband, but no 71 § 2713, Code Civ. Pro. 297, 300. Cf. Ratcliffe's Case (A. D. 72 Subd. 10, § 98, Decedent Estate 1592), 3 Co. Rep. sgb, 40. Law. " Swinb. 300, cited 3 Holdsworth, "Subds. I, 10, II, § 98, Decedent Hist. Etig. Law, 44. Estate Law; Toller, 374. '822 and 23 Car. II, chap. 10; 4 '4 § 100, Decedent Estate Law. Burn's Ecc. Law, 558. '6 Subd. 7, § 98, Decedent Estate '' i James II, chap. 17, supra, p. Law; § 100, Decedent Estate Law. 437. '6 Case of Duke of Suffolk, Swinb. so Supra, pp. 443, 444. § 98 Statute of Distributions. 455 descendant and no father, one-half of the surplus, after payment of debts, then goes to the mother of intestate,*^ unless such intes- tate left also surviving, brothers and sisters (one or more) or their representatives, when the mother of intestate will share equally with such brothers and sisters, or their descendants; the representa- tives of the deceased brothers and sisters taking the shares of those deceased.*^ Sisters and brothers of the half blood and their descendants are entitled to be let into such a distribution equally with those of the whole blood. ^° If the intestate leave a mother, but no husband or wife, no father and no descendants, and no brothers or sisters or their descendants, the mother takes all.'* If the deceased was an illegitimate and leave no widow or husband and no descendant, the mother takes all the surplus of personality remaining after payment of debts.''' If a mother claims all by right of succession to a posthumous child born alive, the burden of proof is on her to prove the birth of the child alive.'" Brothers and Sisters and Their Descendants. If an intestate has no husband or wife, no descendants, and no father, the Statute of Distributions next prefers certain collaterals, viz., the brothers and the sisters of such intestate and the descendants of such as are dead.»^ It may be well to remark at this point that no representation is admitted among collaterals after the descendants of brothers and sisters.'* The brothers and sisters referred to are those of intes- 81 Subds. 6, 8, § 98, Decedent Es- '5 Subd. 9, § 98, Decedent Estate tate Law; § 100, Decedent Estate Law; § 100, Decedent Estate Law. Law. See below " Distribution of person- 82 Subds. 5, 6, § 98, Decedent Es- alty of illegitimates." tate Law; Doughty v. Stilwell, i 86 Matter of Smith, 136 App. Div. Bradf. 300. 10. 83 Subd. 13, § 98, Decedent Estate 87 Subds. S, 6, § 98, Decedent Es- Law ; Matter of Southworth, 6 tate Law. See. chap. 367, Laws of Dem. 216. 1903 for amendment. 8* Subd. 8, § 98, Decedent Estate 8S Subd. 12, § 98, Decedent Estate Law; § 100, Decedent Estate Law. Law. 456 The Decedent Estate Law. § 98 tate.'" This last provision, excluding representation among col- laterals after brothers' and sisters' descendants, is a modification of the old Statute of Distributions, which excluded representation among collaterals after brothers' and sisters' children."" In 1898, an amendment to the Code of Civil Procedure, then containing the Stat- ute of Distribution, for a time changed the provision, excluding col- laterals beyond the descendants of brothers and sisters of intestate. It provided for representation among collaterals in the same manner as allowed by law in reference to real estate.'' But this act was soon repealed,"^ as it led to minute subdivisions and proved very trouble- some in practice.'^ How far the opinion in Matter of Davenport is authoritative at all since the repeal of the act of 1893, on which it is founded, may, perhaps, be regarded as still an open question.^* Under the existing Statute of Distributions,''^ if intestate leave no descendant, no father, but leave a widow and a mother, a brother, or a sister (one or more), one-half of the surplus is dis- tributed to the mother and the brothers and sisters and their rep- resentatives in equal parts; the representatives of deceased brothers and sisters taking the share or shares, of such deceased.'" Chapter 367, Laws of 1903," altered the old rule, that no representation was allowed beyond brothers' and sisters' children, and in favor of remoter descendants of brothers and sisters. 89 Doughty V. Stillwell, i Bradf . id. 482 ; Matter of Prote, 54 id. 495 ; 300 ; Adee v. Campbell, 79 N. Y. 52 ; Matter of Fleming, 48 id. 589 ; Mat- Matter of Suckley, 11 Hun, 344. ter of Martin, 95 App. Div. 626; 90 22 and 23 Car. II, chap. 10. See Matter of Hardin, <)•] id. 493 ; Matter above p. 436, and 2 R. L. 314, § 16; of Devoe, 107 id. 245; Matter of 2 R. S. 97; Adee v. Campbell, 79 Hoes, 119 id. 288; Matter of Mc- N. Y. at p. S3- Millan, 126 id. 155, 163; Matter of 91 Chap. 319, Laws of 1898. Peck, 57 Misc. 535 ; Matter of Barry, 92 Chap. 539, Laws of 1905; chap. 62 id. 456. Cf. Armstrong v. Gal- 240, Laws of 1909. usha, 43 App. Div. 248. 93 Matter of Davenport, 36 Misc. ^^(fj App. Div. 191, 192, 172 N. Y. /VS, 476; Matter of Davenport, 67 454. App. Div. 191, 172 N. Y. 454, 4S7; 96 § gg^ Supra. Matter of Healy, 27 Misc. 352 ; Mat- ^ Subds. 5, 6, § 98, Decedent Es- ter of Hadley, 43 id. S79; Matter of tate Law. Ebbetts, 43 id. 575 ; Matter of Mc- '^ Now subds. 5, 12, § 98, Decedent Gowan, 98 N. Y. Supp. 304; Matter Estate Law; and see chap. 539, Laws of N. Y. Security & Trust Co., 46 of 1905. Misc. 224; Matter of Dunning, 48 § 98 Statute of Distributions. 457 As representation takes place only where there are some surviv- ing members of a class,"* the meaning of the amendment does not seem clear in many instances, and no adjudged case appears to have determiined its meaning in all respects. Indeed there is not much to be said of weight on this act of 1903, in consequence of the paucity of authority on its provisions."" It will be remembered that if there are only nephews and nieces of intestate, and no brothers or sisters of intestate, the former do not take by representation : and so it is of great-nephews and great-nieces ; when there are no surviving brothers or sisters or nephews and nieces of intestate such great- nephews and great-nieces do not take by representation but by degree.^ The question would seem to arise on the act of 1903, whether such great-nephews and great-nieces were thereby intended to take, to the exclusion of other next of kin of nearer degree, in a case where no brother and no sister and no nephew and no niece sur- vive intestate. In other words, is the preference to brothers' and sisters' descendants so absolute since the act of 1903 as to entitle such descendants to priority over other collaterals of nearer degree ?^ As has been remarked above, in a case where there are no surviv- ing brothers and sisters and no nephews and nieces, the grand- nephews and grand-nieces do not take by representation but by degree. It would seem, therefore, that they could not now be preferred to those next of kin or nearer degree to intestate, unless such grand- nephews and grand-nieces take by representation.^ All the cases last cited, except Matter of Prote,* it is necessary to observe, turn upon the construction of the act of 1898,^ allowing representation S8 Adams v. Smith, 20 Abb. N. C. 2 chap. 367, Laws of 1903; chap. 60, note p. 61 ; Matter of South- 539, Laws of 1905, was subd. 512, worth, 6 Dem. 216; Fletcher v. § 98, Decedent Estate Law. Cf. Mat- Severs, 30 N. y. St. Rep. 826. ter of Martin, 95 App. Div. 626; S3 See Matter of Marsh, s Misc. Matter of Prote, 54 Misc. 495. 428 ; Matter of Healy, 27 id. 352. 3 Cf. Matter of Fleming, 48 Misc. iChap. 367, Laws of 1903, now 589; Matter of Hadley, 43 id. 579; subd. 5, § 98, Decedent Estate Law; Matter of Davenport, 67 App. Div. chap. 539, Laws of 190S, now subd. 191, afifd., 172 N. Y. 454. 12, § 98, Decedent Estate Law; Han- ^ £.4 Misc. 495. son V. Langan, 30 N. Y. St. Rep. 5 Chap. 319, Laws of 1898. 826, 828, 9 N. Y. Supp. 625. 458 The Decedent Estate Law. § 98 among collaterals in the same manner as allowed by the statute governing descents. The act of 1898 has been since repealed." But the reasoning of the court seems to foreshadow a construction of the Statute of Distributions and the amendment of 1903 which precludes a preference to more remote next of kin over those of nearer degree, unless such remote kindred do take by representa- tion.'' As stated above, when grand-nephews and grand-nieces stand alone in the first class of fraternal kindred, they do not then take by representation, but by degree.* Nothing, however, could be said in the Matter of Davenport which would be final on the construc- tion of the act of 1903, for it had not then been enacted.' If intestate leave no widow and no descendant, but does leave a mother and a brother or sister (one or more) and the descendants of deceased brothers and sisters, the whole surplus clearly belongs to them all in equal parts ; except that the descendants of deceased brothers and sisters take inter se the part of the deceased per stirpes and not per capita, as the degrees are unequal.'" Where an intestate leaves only a mother and a half-sister they share equally." Although a grandparent is of equal degree with a nephew, in point of consanguinity to intestate, yet the nephew is preferred,'^ and the act of 1903, although very imperfectly framed to accom- plish this end, strengthens this ruling.'?^ Next of Kin. If the intestate leave no husband and wife, no descendants, no parent, no brother and sister and no descendants of brothers and sisters, the scheme of the existing statute, sirfce «Chap. 539, Laws of 1905; chap. i" Subds. 5, 6, § 98, Decedent Es- 240, Laws of 1909. tate Law. See chap. 367, Laws of 'Chap. 367, Laws of 1903; Matter 1903; subds. 10, 11, § 98, Decedent of Davenport, 67 App. Div. 191, 172 Estate Law. N. Y. 454. 11 Matter of Cruger, 68 St. Rep. 8 This was the case in Matter of 241 ; s. c, 34 N. Y. Supp. 191. Prote, 54 Misc. 495. "Matter of Marsh, 5 Misc. 428; 'Chap. 367. Laws of 1903, now Hurtin v. Proal, 3 Bradf. 414. Cf. subd. 5, § 98, Decedent Estate Law; Williams on Executors, 1079. Matter of Davenport, 67 App. Div. 1^ Chap. 367, Laws of 1903, now 191, 172 N. Y. 454; Matter of Hoes, subd. 5, § 98, Decedent Estate Law. 119 App. Div. 288. ' See p. 461 infra. § 98 Statute of Distributions. 459 the amendment of 1893, continues to entitle the next of kin in equal degree to intestate to distribution as before.^* Next of kin, or kindred or consanguinity, is always defined as "vinculum personarum ab eodcm stipite descendentium;" or as the connection or relation of persons descended from the same ancestor or stock.^"* Lineal consanguinity subsists beitW'een persons, of whom one is descended in a direct line from the other. " Col- lateral consanguinity," or " kindred," answers to the same description, that is to say, it denotes a descent from the same stock, but not one from the other.^® The mode of calculating the degrees in the collateral line for the purpose of ascertaining who are " next of kin " conforms, as has been already said,^' to the civil law, and not to the canon law,^' and is as follows: We count upward from either of the parties related to the common stock, and then downward again to the other; reckoning a degree for each person both ascending and de- scending; or, in other words, take the sum of the degrees in both lines to the common ancestor. Thus there are two degrees between brother and sister and three between uncle and nephew.^^ But in determining lineal propinquity, the method of the Canonists is used, and each generation, upward or downward, counts one degree. Thus, there is one degree between father and son, and two degrees between father and grandson.^" In the annexed table of consanguinity, the degrees are computed as far as the sixth : " Subd. S, § 98, Decedent Estate w Supra, pp. 383, 442. Law; Sweezy v. Willis, I Bradf. '^^ Supra, pp. 383, 442. Sweezy. v. 495. Willis, I Bradf. 495; Hurtin v. i"2 Black. Comm. 202; i Williams, Proal, 3 Bradf. 414, 417. Executors, 274 ; Goodeve, Personal i' i Williams on Executors. Prop. 375. 2" Goodeve, Pers. Prop. Law, 375. 16 2 Black. Comm. 204; Goodeve, Pers. Prop. 376. 460 The Decedent Estate Law. Table of Consanguinity or Propinquity.^* §98 IV. Great grand father's father. III. Great grand- father. II. Grand- father. I. Father. V. Great great uncle. IV. Great uncle. III. Uncle. V. Great uncle's son. IV. Cousin geiman. VI. Second cousin. V. III. 3on of the Nephew. cousin german. . IV. Son of the nephew; brother's erandson. 21 See another Table, in Hunter's Roman Law, facing p. 831, for a more elaborate scheme. § 98 Statute of Distributions. 461 The construction of the original Statute of Distributions" was by the revisers of the Revised Statutes, to some extent, intended to be placed in the remodeled act itself.-^ It will be perceived from the table or diagram above, that if an intestate left neither chil- dren nor parents, but brothers and sisters and a grandfather, or grandmother, they are in equal degree (the second) from intestate. Strictly, under the statute, all such persons should share alike as they are in the same degree.^'' But in the year 1686, it was de- cided that a grandmother was not entitled to share with brothers and sisters of the intestate.^' And this decision was followed by Lord Hardwicke as res integra.^'^ The Revised Statutes conse- quently provided, in substance, that brothers and sisters should take, on a distribution, in preference to grandparents.^^ At least such is the construction of the present statute.-* Nevertheless if an intestate leave no nearer kindred than a grand- father or a grandmother and uncles and aunts, the grandfather or grandmother being in the second degree, will be entitled to the whole surplus, exclusive of the uncles and the aunts who are only in the third degree.^' Great-grandfathers and great-grandmothers being in the third degree are entitled to distributive shares with uncles and aunts.'" When no Representation among Collaterals. We have been at some pains to point out that under the Statute of Distributions representation can never take place, unless there is one or more of a prior class in existence, and some of such class are dead and en- titled to be represented by their descendants.^'- The old statute provided " that there be no representation admitted among collaterals 22 22 and 23 Car. II, chap. 10 ; i Hurtin v. Proal, 3 id. 414 ; Matter of Jac. II, chap. 17. Marsh, S Misc. 428; Hanson v. Lan- ^^ Supra, p. 446. gan, 30 St. Rep. 828; Hill v. Nye, 2*1 Williams, Executors, 1079. 17 Hun, 457; Mentney v. Petty, 25 Lord Winchelsea v. Norcliff, 2 Prec. Chan. 593; Blackborough v. Freem: ps, i Vern. 403. Davis, i P. Wms. 41, i Lord Raym. 26 Evelyn v. Evelyn, 3 Atk. 762, 684, Com. Rep. 96, Holt, 43, i Salk. Amb. 191. 38, 12 Mod. 613 ; Woodruff v. Wick- 27 2 R. S. 96, § 75. worth, Prec. Chan. 527. 28 Matter of Marsh, 5 Misc. 428; soLioyd v. Tench, 2 Ves. Sr. 215. Hurtin v. Proal, 3 Bradf. 414. ^i Supra, pp. 446, 453. 29 Sweezey v. Willis, i Bradf. 495 ; 462 The Decedent Estate Law. § 98 after brothers' and sisters' children." ^^ In 1905 the language of this provision was changed to its present form: no representation shall be admitted among collaterals after brothers' and sisters' de- scendants.-''^ The statute, as amended, does not admit of repre- sentation among collateral next of kin, except in the instance of descendants of brothers and sisters of intestate, as is apparent from the decisions.^* Precisely what is meant by the new language of the act of 1905 has been considered in substance under this section.^^ Uncles, Aunts, and Cousins. As no representation among collaterals is allowed after the descendants of brothsrs and sisters, the uncles and aunts of intestate, being nearer than his cousins, take to the exclusion of cousins.^" So cousins take to the exclusion of the descendants of deceased cousins.^' Distribution of Personalty of Illegitimates. If an illegitimate intestate marry and have issue, the rights of a widow or a husband and of the issue of the marriage in respect of the personalty of the illegitimate, enjoyed in full property and dominion, are unaf- fected by the status of the illegitimate intestaite, in so far as such property is concerned. The rights of a husband or a wife, or of the children of the illegitimate intestate, under the statute are the same as if the illegitimate had been legitimate; they can not be greater, nor ought they to be less. If the illegitimate intestate die without issue or a spouse sur- viving, the mother of intestate alone is entitled to the personalty on any distribution thereof ;^' and if the mother be then dead the rela- tives on the part of the mother take in the same manner as if the intestate had been legitimate, and such relatives are entitled to administration in the same order.^' 32 Supra, pp. 437, 4SS ; Adee v. 36 Matter of Nichols, 60 Misc. 299. Campbell, 79 N. Y. 52; Matter of ^7 Matter of Barry, 62 Misc. 456; Suckley, 11 Hun, 344; Doughty v. Matter of Schlosser, 63 id. 166. Stilwell, I Bradf. 300. 38 Subd. 9. § 98, Decedent Estate 33 Chap. 539, Laws of 1905, now Law. subd. 12, § 98, Decedent Estate Law. 39 Subd. 9, § 98, Decedent Estate 3* Matter of Schlosser, 63 Misc. Law ; The Public Adm. v. Hughes, i 166; Matter of Barry, 62 id. 456; Bradf. 125; Peters v. Public Adm., Matter of Davenport, 172 N. Y. 454. i id. 200, and see text under § 89, i^ Supra, p. 457. supra. § 98 Statute of Distributions. 463 Married Women. The Statute of Distributioiis since the alteration in the common law relating to husband and wife, and the so-called Married Women's Acts which gave the wife dominion over her separate estate at law, applies to such separate estates when a married woman dies intestate with descendants.*" Aliens. The rule of the common law excluding aliens from taking by descent has no application to a distribution of personal property to friendly aliens during times of peace.*"^ *" See § 100, Decedent Estate Law, i, reversing i Johns. Ch. 206; Meak- and commentary thereto. ings v, Cromwell, 5 N. Y. 136, 138. ^oi Bradwell v. Weeks, 13 Johns. 464 The Decedent Estate Law. § 99 § 99. Advancements of personal estates. If any child of such deceased person have been advanced by the deceased, by settlement or portion of real or personal property, the value thereof shall be reckoned vi^ith that part of the surplus of the personal property, which remains to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding section, would be distributed to such child, as his share of such surplus and advancement, such child and his descend- ants shall be excluded from any share in the distribution of the surplus. If such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, as is sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of this section, nor shall the foregoing provisions of this section apply in any case where there is any real property of the intestate to descend to his heirs. Formerly § 2733, Code of CiviT Procedure (enacted by chap. 686, Laws of 1893) : § 2733. Advancements. — If any child of such deceased person have been advanced by the deceased, by settlement or portion of real or personal prop- erty, the value thereof shall be reckoned with that part of the surplus of the personal property, which remains to be distributed among the children; and if such advancement be equal or superior to the amount, which, accord- ing to the preceding section, would be distributed to such child, as his share of such surplus and advancement, such child and his descendants shall be excluded from any share in the distribution of such surplus. If such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, as is sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of this section, nor shall the foregoing provisions of this section apply in any case where there is any § 99 Advancements. 465 real property of the intestate to descend to his heirs. Where there is a surplus of personal property to be distributed, and the advancement con- sisted of personal property, or where a deficiency in the adjustment of an advancement of real property is chargeable on personal property, the decree for distribution, in the surrogate's court, must adjust all the advancements which have not been previously adjusted by the judgment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree, is not a party to the proceeding, the surrogate must cause him to be brought in by a supplemental citation.*! Comment. The doctrines of advancement, as it has been stated before,*" spring from two sources, equity and the old Statute of Distributions.^^ The Statute of Distributions had no reference to real estates except in the case of coparceners, but real estates, on a partition between coparceners, were brought into " hotchpot " long before the Statute of Distributions.** When the revisers of the Revised Statutes came to make their revision of the statutes, they placed the provisions concerning advancements of the then existing Statute of Distributions*^ immediately after the sections of their revision relative to distribution.*" This completed the Stat- ute of Distributions. But the revisers also introduced a similar provision in the article on the descent of real property.*^ Thus there were, in the Revised Statutes, two sets of statutory provisions relating to advancements. In the latest revision of the statutes of the State (and by this is meant the Consolidated Laws of 1909) these dual provisions are still preserved, although one set might very well have been dispensed with under the present consolidated form of the law.** In any event all such provisions last cited are in pari materia, and are to be read together, if intestate's estate comprises both real and personal property.*" *! Repealed, except last two sec- *^ i R. L. 313, § 16. tions, by § 130, Decedent Estate Law. *'2 R. S. 97, §§ 76, 77. The two final sentences remain ex- *' i R. S. 754, §§ 23, 24, 25, 26. See tant and in force, § 2733, Code Civ. text above under § 96, Decedent Es- Proc. tate Law. 42 Under § 96, Decedent Estate ^s §§ 96, 97, g8, 99, Decedent Estate Law. Law, and § 2733, Code Civ. Pro. *3 22 and 23 Car. II, chap. 10 ; see « Beebe v. Estabrook, 79 N. Y. 246, p. 436, supra. affg. 11 Hun, 523; and see text under *4Litt. §§ 266, 267; Pratt v. Pratt, §§ 96 and 97, supra. Fitzgib. 284; 2 Black. Comm. 190; Tomlin's Lyttleton, 307. 30 466 The Decedent Estate Law. § 99 History of the Rule Stated in this Section. The rule originally- stated in the Statute of Distributions to the effect, that advance- ments made to those entitled to distribution should be brought into " hotchpot," or in other words should be considered in the com- putation on a final division,^" is conceded to be a very ancient pro- vision of law. It is in some way connected with the ancient custom of bringing into " hotchpot " lands divisible among co- parceners.'^ " Hotchpot," which prevailed before the Statute of Distributions in London, York, and some other boroughs, on the division of personalty of an intestate, is indirectly traced to " Col- latio bonorum " of the Civilians.'^ That there is some indirect connection between the Roman " CoUatio bonorum " and the Eng- lish " Hotchpot " is more than likely."' This opinion is not a nov- elty; the notes to Coke on Littleton seem to concede the accuracy of Coke's own assertion, that " hotchpot " is what the Civilians call " collatio bonorum." "* In the Roman or civil law " collatio " was in some way connected with legitim, or the portions {" legitima portio") which children (or even brothers and sisters) could demand as of right from the estate of parents or of each other, on testate or intestate suc- cessions. Gifts made in satisfaction of legitim were considered for the purpose of " hotchpot " or " collatio.^^ Justinian enacted, that whatever could be reckoned for the purposes of legitim should be brought into " hotchpot." °^ In like manner daughters were required to bring into " hotchpot " their doweries."^ Such provision's were certainly founded on the highest equity, as equality of division of a family estate is always agreeable to equity. The common law relating to " hotchpot," or the bringing of ad- vances into divisions of estates among coparceners, certainly pre- BO22 & 23 Car. II, chap. 10, supra, ^^ Scrutton, "Roman Law and p. 436. Law of England" 146, 147; 2 Black. 61 Litt. §§ 266, 267 ; 2 Black. Comm. Comm. 517; i Essays in Anglo- 190. American Legal Hist. 210. 62Litt. §§ 266, 267, 268; Co. Inst. 54 See 17th ed. Co. on Litt. 177a. 176b; 2 Black. Comm. 516; Tomlins' Cf. Sherwood v. Wooster, 11 Paige, Lyttleton, 307 ; Tomlins' Law Diet. 441 ; Kintz v. Friday, 4 Dem. 540. titles, " Hotchpot," " London " " Ex- ^6 d. 5^ 2. 25 pr. ecutor"; Swinb. pt. Ill, § 18; ^^ c. 6, 20, 20 pr. Terry v. Dayton, 31 Barb. 519, 523. 67 c. 6, 20, 3. § 99 Advancements. 467 sents features common to collatio bonorum}^ So the like provi- sion of the Statute of Distributions (although probably founded directly on ancient customs of England requiring children to bring into " hotchpot " advances made to them by the father in his lifetime^') resemble collatio bonorum sufficiently to denote a com- mon origin. The provisions of the Statute of Distributions, rela- tive to the hotchpot of advancements, have been incorporated in that statute ever since its first re-enactment in New York in the manner narrated in these pages."" A similar provision is now con- tinued, really as part of the present Statute of Distributions, in this section of this act,"^ and by reason thereof a child of an in- testate who has received an advancement equal to his distiibutive share is not entitled to receive more on a distribution by an admin- istrator of intestate."^ Construction of this Section. This section has been held to have no application to cases of partial intestacy, as the existence of a will is presumed to disclose an intention on the part of tes- tator that advancements should not be deducted or considered on the division of the donor's estate."^ But .such a presumption cer- tainly does not appear to be controlling in those frequent cases where a testator simply appoints executors, and makes no divisiion of his property, leaving that to be distributed according to law. Yet it is held the other way."* The statutory provisions concerning advancements have, however, no reference to wills, or to the satisfaction of devises or ademp- tion of legacies contained therein. "° s^Litt. §§ 266, 267; 2 Black. Comm. 278; Bowron v. Kent, igo N. Y. 422, 190. 432; Clark V. Kingsley, Z7 Hun, 246; 59 22 & 23 Car. II, chap. 10, supra, and see above under § 96, pp. 419- p. 436. 428, supra. 60 Supra, pp. 443-445. M Camp v. Camp, 18 Hun, 217, "§ 99, Decedent Estate Law; revg. 2 Redf. 141. Cf. Alexander v. Terry v. Dayton, 31 Barb. 519, 523. Alexander, i St. Rep. 508. See 62 Parker v. McClure, 3 Keyes, 318. pp. 422-424, supra. 63 Thomson v. Carmichael, 3 Sandf. 65 Langdon v. Aster's Executors, Ch. 120; Arnold v. Haronn, 43 Hun, 16 N. Y. 9, 50. 468 The Decedent Estate Law. § 99 The statute relating to advancements, unlike the original Statute of Distributions, applies to estates of intestate mothers as well as to those of intestate fathers.'"* The sections of this act relating to advancements made out of real property,*^ and those relating to the advancements made out of personal estate,"^ are in pari materia and to be read together.'" The directions of the present statute for adjusting advances are now more complete than was the case before the Revised Statutes.^" What is "Advancement? " An " advancement " is something taken out of an estate of an intestate, in his lifetime, and given to a child (or to one ultimately entitled by law to share in the distri- bution of such intestate's estate, such as a grandchiW^) ; when it is so given under circumstances which indicate that equitably the same should be taken into account on a final distribution of such estate. What these circumstances are, is indicated in both the statute itself and many adjudications of authority.'- Whether or not gifts made in intestate donor's lifetime are to be treated as ad- vancements in the division of his estate, is always a matter of his intention.''' Sometimes, therefore, the ante-mortem transaction be- tween a parent and child may be a gift,'* or a loan,"' and at others an " advancement." " It is important for the lawyer to deter- 66Kintz V. Friday, S Dem. S40. Chace v. Ewing, 51 id. S97; Alex- *'§§ 96, 97, Decedent Estate Law. ander v. Alexander, i St. Rep. 508; *^ § 99, Decedent Estate Law; Matter of Morgan, 104 N. Y. 74; § 2733, Code Civ. Pro. Johnson v. Cole, 178 id. 364, 367; B'Beebe v. Estabrook, 79 N. Y. Kintz v. Friday, 4 Dem. 540; Bow- 246. Cf. Thompson v. Carmichael, 3 ron v. Kent, 190 N. Y. 422, 431, 432; Sandf. Ch. 120; Terry v. Dayton, 31 and see under § 96, supra, p. 422. Barb. 519. ''3 Alexander v. Alexander, i St. ™ Terry v. Dayton, 31 Barb, at Rep. 508; Hine v. Hine, 39 Barb, p. 523. S07; Matter of Morgan, 104 N. Y. '1 Beebe v. Estabrook, 11 Hun, 74; Arnold v. Haronn, 43 Hun, 278. 523, affd., 79 N. Y. 246 ; Matter of '« Matter of Morgan, 104 N. Y. 74. Harvey, 3 Redf. 214, and see above '^ Bruce v. Grisconi, 9 Hun, 280, under § g5, " advance," not an " ad- affd., 70 N. Y. 612. vancement." '« See above under i 96 and McRea ■^2 § 99, Decedent Estate Law ; v. McRea, 3 Bradf . 199 ; Sanford v. Terry v. Dayton, 31 Barb. S19; Sanford, 61 Barb. 293. § 99 Advancements. 469 mine what facts are evidential of the testator's intent, as intent is controlling on questions of advancement.^' While those who take by representation take subject to advance- ments to those they represent/* there is a difference between an advance to a grandchild made in his father's lifetime and one made to such grandchild after his father's death. In the former case the advance is a gift, and it is not treated as an " advancement " to the grandchild, even if his father predecease him. But in the latter case it may be an " advancement," '° provided, there is some evi- dence of intention to that end.**" There is nothing in the statute which prevents heirs or next of kin from agreeing among themselves as to what shall be regarded as advancements and the value thereof."^ The law always favors and enforces family agreements of this kind.*^ How Advancements Adjusted. When " advancements " have been made to children or descendants such advancements must be brought into '' hotchpot " among the other children,^^ provided they are partial and not full advancements ; that is to say, if they are not fully equal to the distributive share which the child or de- scendant is entitled to on final distribution.** If the child or de- scendant is fully advanced, the probable effect is to remove that child out of the reckoning. At least, such was the rule under the custom which preceded the statute*^ and it seems to be enforced by the provisions of the existing statute. ^° Under the English statute, a child advanced in part brought in his advancement only as to the other children, for no benefit ac- " See above under this section and ^2 Pomeroy v. Eq. Juris. § 850. Dougherty v. Dougherty, 7 Alb. L. J. ^3 McRae v. McRae, 3 Bradf. 199, 347. 207; Beebe v. Estabrook, 79 N. Y. ''^ Supra, p. 425. 246. Cf. Terry v. Dayton, 31 Barb. '3 Stevenson v. Martin, 1 1 Bush. at p. 523. 48s. 493; Beebe v. Estabrook, 79 ** C/. Williams, Executors, 1 102, on N. Y. 246. the custom. *" Jackson v. Matsdorf, 11 Johns. ^^ c^. Williams, Executors, H02, on 91 ; Alexander v. Alexander, i St. the custom. Rep. 508; Matter of Morgan, 104 se See §§ 96, 99, Decedent Estate N. Y. 74. Law; Terry v. Dayton, 31 Barb, at siHoerle v. Hoerle, 94 App. Div. p. 523; Parker v. McCluer, 3 Keyes. 615. 318. 470 The Decedent Estate Law. § 99 crued from it to the widow.'^ And such seems the present rule, except where real estate has been advanced, in which the widow has a dower interest.^* Whether debts due from heirs or distributees are to be treated as advancements depends on the statute. In some jurisdictions a distinction is made between debts and advancements, and between heirs taking in their own right and by representation.^" Heirs tak- ing in their own right, not being liable for the debts of their an- cestors, may take their shares free from any deduction on account of their ancestor's debts. But when they take by representation they can take no more than the person they represent would have taken had he survived the intestate."" The indebtedness of a dis- tributee constitutes assets for the benefit of the estate."^ If a debt exceed the debtor's distributive share it will in this jurisdiction be treated as assets to the extent of such share."^ The value of advancements is reckoned as of the time when made, unless a contrary intention appears from the terms of the conveyance."' The statute provides for an express valuation by an acknowledgment of the recipient, and it seems to make it conclu- sive even as to other children not advanced."* Interest is not as a rule, in the absence of agreement otherwise, allowed on advances, and the same would hold true of advancements."' After intestate's death, it may, however, be just to charge interest on advancements from the time of intestate's death, in order to equalize the shares of those entitled to distribution."' 8' Ward V. Laut, Prec. Chan. 182, ^^Howland v. Heckscher, 3 Sandf. 184 ; Kircudbright v. Kircudbright, Ch. 519, 526. Cf. Ebeling v. Ebeling, 8 Ves. SI, 64. Cf. Howland v. Heck- 61 Misc. 537, 539; Verplank v. De- scher, 3 Sandf. Ch. 519, S2S. went, 10 Hun, 611; Cases on Wills. 88 Woerner on Administration, 1217. 93 § gg^ Decedent Estate Law ; 89 Woerner on Administration, 149 ; Parker v. McCluer, 3 Keyes, 318; Smith V. Kearney, 2 Barb. Ch. 533 ; Palmer v. Culbertson, 143 N. Y. 213. Expr. Oakey, i Bradf. 281. Cf. March v. Gilbert, 2 Redf. 465; 90 Woerner on Administration, 150; Hoerle v. Hoerle, 94 App. Div. 615. Beebe v. Estabrook, 79 N. Y. 2446; S4§ g6, Decedent Estate Law, and Parker v. McCluer, 36 How Pr. 301 ; see Woerner on Administration, s. c, 5 Abb. Pr. N. S. 97, 3 Keyes, 1221. 318. 96 Matter of Keenan, 15 Misc. 368, 91 Smith v. Kearney, 2 Barb. Ch. 38 N. Y. Supp. 426. 533- • '* Woerner on Administration, 1222. § 99 Advancements. 471 This section, lilce the original Statute of Distributions,"' excludes children and descendants who have been fully advanced from any shares in the distribution of an intestate's estate.''* Section 97 of the act directs that advancements made out of real property shall be adjusted out of the real property descendible to heirs, and that advancements of personalty shall be adjusted out of the surplus of personalty distributable under the existing Statute of Distri- butions.'" If either species of property is insufficient for that pur- pose the deficiency is to be adjusted out of the other.^ The surro- gate may adjust the advancements out of personal property.- ^ See p. 436, supra. 1 § 97, Decedent Estate Law. 5* § 99, Decedent Estate Law. 2 § 2733, Code Civ. Pro. and see '' § 98, Decedent Estate Law ; under § 97, supra. Terry v. Dayton, 31 Barb. 519. 472 The Decedent Estate Law. § lOO § 100. Estates of married women. The provisions of this article respecting the distribution of property of deceased persons apply to the personal property of married women dying, leaving descendants them' surviving. The husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more. Formerly § 2734, Code of Civil Procedure, as amended by chap. 686, Laws of 1893 : § 2734. Estates of married women. — The provisions of this article re- specting the distribution of property of deceased persons apply to the personal property of married women dying, leaving descendants them surviving. The husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more.' § 2734, Code of Civil Procedure was in 1893 taken out of 2 R. S. 9S, § 79: § 79. The preceding provisions respecting the distribution of estates, shall not apply to the personal estates of married women; but their husbands may demand, recover, and enjoy the same, as they are entitled by the rules, of the common law.* History of this Section. By the old law a husiband had the exclusive right of taking out administration.^ This right was con- firmed by the Statute of Frauds, which provided in substance, that the original Statute of Distributions" should not " be construed to extend to the estates of femes covert that shall die intestate, but that their husbands may demand and have administration of their rights, credits and other personal estates and recover and enjoy the same as they might have done before the making of the said 3 Repealed, § 130, Decedent Estate Rowe, Cro. Car. 106; Goodeve, Pers. Law. Prop. 366; Williams on Executors, * Repealed by chap. 686, Laws of 267 ; Barnes v. Underwood, 47 N. Y. 1893. 351 ; McCosker v. Golden, i Bradf. 5 Humphrey v. BuUen, i Atk. 459 ; 64. Sand's Case, 3 Salk. 22; Johns v. 622 & 23 Car. H, chap. 10. § 100 Estates of Married Women. 473 act." ' The Statute of Frauds is miscited occasionally in the New- York reports.* When the Statute of Distributions was expressly re-enacted in New York, in the year 1774, in the manner before detailed in these pages," this provision of the Statute of Frauds, giving the hus- band right to administer and excepting the estates of femes covert from its operation, was appended to the New York version of the Statute of Distributions itself.^" After the foundation of the State government, the various revisions of the statute law continued the same provision in force.'^^ In 1830 it became part of the Revised Statutes,^^ and in a somewhat altered form this section is a sur- vival of one of such provisions of the Revised Statutes. ^^ The balance survives in the Code of Civil Procedure or this act.^* In consequence, the husband is still entitled to admiinister where the wife dies intestate and without descendants.^^ The foundation of the husband's right to administration has been attributed by some to the Statute 31 Edw. Ill, regulating ad- ministration, on the ground that the husband was to be considered as the " wife's next and most lawful friend " within that statute. But others insist that the husband is entitled to administer jure mariti and independently of statute.^'' Whether the right of the husband to take the wife's personalty absolutely on her death de- pends on his right to administer, or is independent of it and jure mariti, has also been questioned by historical jurists, and the courts of this State do not seem to decide on which ground he originally '29 Car. II, chap. 3, § 25. See this 1^2 R. S. 75, § 29; id. 98, § 79. See act, Fowler's Pars. Prop. Law (2d above under this section, ed.), p. 301. 1' § 100, Decedent Estate Law. 847 N. Y. p. 355; 100 id. p. 332. "§ 2 660, Code Civ. Pro.; § 103, See the English Stat, of Frauds, 29 Decedent Estate Law. "" '~~~~ Car. II, chap. 3, § 25. 16 Redfield's Surrogate's Practice ^ Supra, pp. 443-446. (7th ed.), § 346; Matter of Harvey, 3 loSee chap. 11, Laws of 1774. The Redf. 214; Matter of Thomas, 33 reader will find the history of the Misc. 729, 731. Statute of Frauds in the author's w Williams on Executors, 267, 268; edition of the Pers. Prop. Law of Barnes v. Underwood, 47 N. Y. 351, New York (2d ed.), pp. 133-136. 354; McCosker v. Golden, i Bradf. 112 J. & V. 7i> § 5; I K. & R. 539, 64 § 16; I R. L. 311, § 17; McCosker v. Golden, I Bradf. at p. 65. 474 The Decedent Estate Law. § loo succeeded to her personalty," although the tendency is to assign it to the " jus mariti " ^* That he did so succeed is, however, to be re- garded as quite sufficient for practical purposes. Husband's Right to Married Woman's Personal Property. Prior to the Married Women's Acts in this State" the title to personal property and chattels real, possessed by a woman (with few exceptions), passed to her husband by force of her marriage.^" This was accounted for in law by some theory of merger or iden- tity which took no notice of the female. Her personal estate and chattels real, not in her possession, became the husband's only by reduction to possession.^^ A married woman could not at com- mon law make a will without her husband's consent to the par- ticular will,-- unless there was an ante-nuptial agreement to that end ; ^^ although she could after coverture execute a devise pursu- ant to a power to devise her settled lands or property.^* If the wife had any personalty of her own, by virtue of any limitation to her separate use, or by assent of the husband, or in reversion or re- mainder, the husband's right to be her administrator on her death was complete, and exclusive of all other persons.^' The founda- tion of this right of the husband though disputed,^* was finally con- firmed by the Statute of Frauds, as stated in the preceding paragraph. ^^ " Barnes v. Underwood, 47 N. Y. 21 Roper on Husband and Wife, 3SI, 3S4. 3SS; McCosker v. Golden, 203 sq. ; 2 Kent Comm. 135; Barnes I Bradf. 64, 65. v. Underwood, 47 N. Y. 351, 353, 18 Ransom v, Nichols, 22 N. Y. no; 354. Robins v. McClure, loo id. 328, 333, ^^ Roper on Husband and Wife, 334; McCosker v. Golden, i Bradf. 170; i J. & V. 93, § S; see under 64, 67. § ID, supra " Coverture." 1' Chap. 200, Laws of 1848 ; chap. ^^ Williams on Executors, 45, 270. 375, Laws of 1849; chap. 576, Laws 24 po^igr'g Rg^i Prop. (3d ed.), of 1853 ; and see Fowler's Real 603. Prop. Law (3d ed.), 607, for later 25 McCosker v. Golden, i Bradf . 64 ; acts. Williams on Executors, 267. ^n Co. Litt. 300 ; 2 Black. Comm. 26 Ibid., see above, p. 473. 433 ; Macqueen on Husband and ^ Supra, p. 473. Wife, 18; Barnes v. Underwood, 47 N. Y. 351- § 100 Estates of Married Women. 475 Married Women's Acts. The so-called " Married Women's Acts," which began in this State with the year 1848,^^ and which were designed to emancipate her from the subordinate status as- signed to her by the common law, and, indeed, by the ancient laws of most primitive states, essentially altered the o^ld law of husband and wife. This modern legislation, in substance, invested a mar- ried woman with . an entirely new juristic status at law, whereby her property became and continued more independently her own at law than it had ever been even in equity, where the modern tendency to the creation of her separate estate first began.^" The result of the legislation just noticed has been much more com- plicated than the average observer takes note of, and there is a tendency discernible among the more conservative rich (a class with whom law reforms, as history shows, most frequently begin) to modify the results of such legislation by private conventions and compacts, which tend to greater permanence of the family relation and to restrain the excesses which entire freedom from control frequently produces among women of feeble endowment. By sfatute a married woman may now make a will without her husband's consent and to his entire disinheritance.^" The construction placed on the Married Women's Acts has, how- ever, been that accorded to all acts which alter the common law — a construction occasionally complained of, because it leaves the old law in force whenever and wherever it is not plainly abro- gated.^^ In so complicated an organism as a State, subject to mul- tiform and involved institutions and laws, this rule of judicial construction has been found to be highly expedient. Although the Married Women's Acts have deprived the husband of marital con- trol of the wife's property during the continuation of the marriage relation, they have been held thus far not to deprive him of the common-law right to administration by virtue of his marital rights, in a case of a wife dying intestate without leaving descend- 28 Chap. 200, Laws of 1848 ; and erture " under § 10, Decedent Es- see supra, under this section. tate Law, supra, p. S9- 2' See I Spence, Eq. Juris. SPS, sq. si Taylor v. Klein, 47 App. Div. 30 Chap. 782, Laws of 1867; Wad- 343, 346; Vallance v. Bausch, 28 hams V. American Home Miss. So- Barb. 633, 642. ciety, 12 N. Y. 415; and see " Cov- 476 The Decedent Estate Law. § loo ants.'^ The statute law also preserves this right as we have just seen. It has been stated, that the 25th section of the original Statute of Frauds excepted the personal property of married women from ', the operation of the Statute of Distributions, and that such leg- islation was in some form continued in force in this State down to the " Married Women's Acts " beginning iti the year 1843.^^ The first part of this section of this act conforms the law ito the legal effect of those acts, and the Statute of Distributions is thereby declared to regulate the distribution of estates of married women who die intestate leaving descendants.^* When Intestate Married Woman Dies without Descendants. When a wife dies intestate without descendants, her husband is not only entitled to administer if he so elect, but even without any administration to retain, subject to her debts all her personal prop- erty jure mariti, as at common law, and notwithstanding the Mar- ried Women's Acts.°° Consequently if the wife was a shareholder in a stock corporation, upon presentation of an affidavit on the part oi the husband, showing that the wife died intestate without paMMs and without descendants, the registrar must transfer the stocK standing in her name on the books of such corporation to the husband, and the registrar is not entitled to require of the husband the production, or other proof, of letters of adimnistration on the '^Shumway v. Cooper, 16 Barb. Harvey, 3 Redf. 214; Barnes v. 556, s6o, affd., Ransom v. Nichols, Underwood, 47 N. Y. 351 ; McCos- 22 N. Y. no; Vallance v. Bausch; ker v. Golden, i Bradf. 64; Shura- 28 Barb. 633; Barnes v. Under- way v. Cooper, 16 Barb. 556, 560; wood, 47 N. Y. 35 1 ; Robins v. Vallance v. Bausch, 28 id. 633 ; Rob- McClure, 100 id. 328; Matter of ins v. McClure, 100 N. Y. 328; Mat- Harvey, 3 Redf. 214; McCosker v. ter of Bolton, 159 id. 129, 133; Golden, i Bradf. 64; Lush v. Al- Matter of Nones, 27 Misc. 165; burtus, id. 456. Matter of McLeod, 32 id. 229; ^^ Supra, p. 59. Matter of Thomas, 33 id. 729; and '* § 100, Decedent Estate Law ; see under § 103, Decedent Estate Kintz v. Friday, 4 Dem. 540. Law. Cf. Matter of Green, 68 36 § 2660, Code Civ. Pro. ; § 103, Misc. I. Decedent Estate Law; Matter of § loo Estates of Married Women. 477 estate of the wife.-^ The only penalty on the husband for not taking out letters of administration under such circumstances is that he becomes liable for the wife's debts, whether or not he has re- ceived assets.^' Life Insurance. Insurance on the husband's life, in favor of his wife who dies intestate without issue before him, does not pass to her representatives but to the husband.^* The fact that the hus- band effects the insurance without the wife's knowledge is imma- terial.^' If Wife Die Leaving Descendants. If a wife die leaving de- scendants, the husband is entitled to the first right to administer,*" and he is entitled to retain on a distribution the same distributive share in the personal property of his wife which a widow is enti- tled to receive in the personal property of her intestate husband, and no more.*^ The text of the commentary under this section should be read in conjunction with that given under section 103 of this act. 36 Sometimes transfer is wrong- of Warner, 32 St. Rep. 897, 11 fully refused under such circum- N. Y. Supp. 894. stances until corporation is advised ^9 Whitehead v. New York Life by counsel to comply. Ins. Co., 102 N. Y. 143. " § 103, Decedent Estate Law. ■*" § 2660, Code Civ. Pro. 38 Waldheim v. Hancock Mut. ^ § 100, Decedent Estate Law. Life Ins. Co., 8 Misc. 506; Matter 478 The Decedent Estate Law. § loi § 101. Liability of heirs and devisees for debt of decedent. The heirs of an intestate, and the heirs and devisees of a testator, are respectively Hable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by, the decedent. Formerly Code of Civil Procedure, § 1843 : § 1843. Liability of heirs and devisees. — The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by the decedent.'*^ History of this Section. We have just seen above that this section was taken from the Code of Civil Procedure.*^ It was, however, carried into that Code from the Revised Statutes in the year 1880 when the revision of the laws relating to decedents' es- tates and surrogates, was made, and it was then re-enaoted, as section 1843, P^rt 11, of the Code of Civil Procedure of that year.** Like most similar provisions of the Code it was directly derived by the codifiers of 1880 from the Revised Statutes,*^ which had also attempted a general revision of the laws relating to surro- gates.*" But this section had a still older history than the Revised Statutes, having been originally enacted in this State as part of the legislative scheme for the relief of creditors against heirs and devisees. Creditors had complained of the hardship of the com- mon law. By the common law lands of a deceased person, were not liable to answer his simple contract debts, and, indeed, the heir was only liable for the specialty debts of his ancestor when he had not aliened. Lands devised were not answerable at all, unless charged in the will.*^ The course of the legislation, altering the common <2 Repealed, § 130, Decedent Es- ^^ Supra, p. 478. tate Law. *' Read v. Patterson, 134 N. Y. *3 § 1843, Code of Civ. Pro. 128; Deyo v. Morss, 30 App. Div. "Chap. 178, Laws of 1880. 56; Rogers v. Patterson, 79 Hun, «2 R. S. 452, § 32. 483. § loi Heirs and Devisees Take Subject to Debts. 479 law in this particular, has been stated elsewhere and need not be repeated at large/* In 1774 the act of 3 & 4 William, and Mary, chapter 14, giving specialty creditors relief, was re-enacted in New York.** In 1786 the heir and devisee were made liable in all cases for all debts of the decedents, special or simple, to the extent of the lands received by them, but only in case the personalty was in- sufficient.^" The act of 1786 was re-enacted by the revisers of 1801°^ and 1813'^ and thence with some enlargements passed into the Revised Statutes,"^ from which it was taken into the Code of Civil Procedure. °* A single section is now again removed to this present act.^^ The adjective, or procedural, part of the legislative scheme of the Revised Statutes to give relief to creditors against heirs and devisees of a deceased debtor, is still to be found in the Code of Civil Procedure."^ The statute law now provides two modes by which lands of de- ceased debtors, situated in this State, may be applied to the payment of their debts and funeral expenses. Within three years from the granting of letters, creditor may apply to the surrogate by petition asking for a sale; or in the alternative, the creditor may pursue the real property of the deceased debtor which falls to the heirs or passes to the devisees of such debtor."'^ It is to the last men- tioned mode of redress, that section loi of the Decedent Estate Law is referred. But section loi standing alone is incomplete, and its provisions in practice require to be supplemented by a cross- reference to the Code of Civil Procedure.^* Payment of What Debts Enforceable under this Section. It is contractual debts of the deceased which are enforceable, under 48 Fowler's Real Prop. Law (3d b4§§ 1837-1842, Code Civ. Pro. ed.), 471, 472. The decisions are ^^ § joi, Decedent Estate Law. not always accurate in their state- ^8§§ 1837-1860, Code Civ. Pro.; ment of historical sequence. ibid. §§ 2722, 2749-2777. ^Chap. 12, Laws of 1774. "§§ 1837^ i860, 2749, 2777, Code 6" I J. & V. 270 ; chap. 27, Laws of Civ. Pro. ; Cunningham v. Parker, 1786 ; Read v. Patterson, 134 N. Y. 146 N. Y. 29, 31 ; Deyo v. Morse, 30 128, 131. App. Div. 56; Hentz v. Phillips, 23 61 1 K. & R. 24s. Abb. N. C. 15, 6 N. Y. Supp. 16. 52 1 R. L. 316. =8§§ 1844-1860, Code Civ. Pro.; M 2 R. S. 450 ; id. 452, § 32 ; Read Hill v. Moore, 131 App. Div. 365, V. Patterson, 134 N. Y. 128; Hau- 367; Lawrence v. Grout, 112 id. 241, selt v. Patterson, 124 id. 349, 356. 243. 480 The Decedent Estate Law. § loi this section, against heirs and devisees, but the existence of a fidu- ciary or contractual relation does not necessarily alter the nature of the obligation. The terms " simple contract " and " specialty," employed in this section, comprehend every kind of contractual obligation ;^^ they embrace deficiencies on judgments of foreclosure."" The statute appears to be broad enough to cover even liabilities of the deceased arising c.v delicto, if they would have supported the old count of assumpsit."^ Debts are, however, always primarily payable out of the per- sonalty of a decedent, and it is only when his personalty is inade- quate, that lands are by statute made equitable assets for the pay- ment of debts as against heirs or devisees."^ Testators may, however, exonerate personalty from the payment of debts by charg- ing them on lands, and in that event this section has no application."' Remedy to Enforce the Liability under this Section. The creditors' remedy to enforce the liability arising under this section is by action."'' The time within which such action may be begun is dependent on circumstances. It has been said that it may be begun at any time within ten years after the cause of action accrues."^ But if the action is on a note, it is subject to the six years bar."" The action brought under this section is in the nature of an equitable action, or a proceeding in rem, and not one for the recovery of money only,"^ at least, when the heir or devisee 6' DeCrano v. Moore, $0 App. Div. ^^ § 102, Decedent Estate Law ; 361 ; Adams v. Hillard, 14 N. Y. Turner v. Mather, 86 App. Div. 172. Supp. 120, 37 St. Rep. 314. Cf. M§ 1837^ Code Civ. Pro. Rogers V. Patterson, 79 Hun, 483. 65 Mead v. Jenkins, 27 Hun, S7o; s'Lockwood V. Fawcett, 17 Hun, Mortimer v. Chambers, 63 id. 335; 146; Hauselt v. Patterson, 124 N. De Crano v. Moore, 50 App. Div. Y. 349. 361, 368; Richards v. Gill, 138 id. 61 Wilkes V. Harper, i N. Y. 586, 750. Cf. § 1844, Code Civ. Pro. S94. Cf. Richards v. Gill, 138 App. 66 Adams v. Fassett, 149 N. Y. 61. Div. 75. 67 Mortimer v. Chambers, 63 Hun, 624 Kent Comm. 420; § 2757, 335; Hentz v. Phillips, 23 Abb. N. Code Civ. Pro.; Kingsland v. Mur- C. 15; Armstrong v. McKelvey, 194 ray, 133 N. Y. 170; Matter of Goetz, N. Y. 179; Hauselt v. Patterson, 71 App. Div. 272, 27s; Fowler's Real 124 id. 349. Prop. Law (3d ed.), 471, 472; Red- field's Surrogate's Practice (7th ed.), § 673. § loi Heirs and Devisees Take Subject to Debts. 481 has not aliened the land."* After alienation the alienor is personally liable-o^ During fhree years after a decedent's death his creditors have a sort of statutory lien on his real estate. After that time the stat- utory lien ceases, and a new lien may be acquired under this section and the Code of Civil Procedure.^" Such creditors have meanwhile an insurable interest.'^ The liability under this section is due to the statute, and it can be pursued only in the manner prescribed by the statute, and there must be proof that the deceased left no personal assets to be ad- ministered, out of which the debt could be paid.'^ The property sought must have come to the defendant by descent or devise to fall within this section.''* If an heir or devisee has aliened the land he is personally liable,''* and if he is since dead his personal representatives are liable.''^ The mere fact that title comes by a devise or by descent of land does not ordinarily create a personal liability in the taker to pay the debts charged on it. Under this section it is the real estate which becomes liable,''® and only to the extent of the interest of the heir or devisee." To make land in the hands of the devisee 58 Hauselt v. Patterson, 124 N. Y. 349- 69 § 1854, Code Civ. Pro.; Avery V. Avery, 52 Misc. 297. ■"• Rogers v. Patterson, 79 Hun, 483, 48s; Piatt v. Piatt, los N. Y. 488; Matter of Fielding, 30 Misc. 700. ''I Herkimer v. Rice, 27 N. Y. 163. K§§ 1844, 1849. Code Civ. Pro.; Selover v. Coe, 63 N. Y. 438; Stil- well v. Swarthout, 81 id. 109, 115; Piatt V. Piatt, 105 id. 488, 496; Rog- ers V. Patterson, 79 Hun, 483, 485; Waring v. 'Waring, 3 Abb. Pr. 246; Ho'.vell V. Randall, 36 Misc. 35. '^Matteson v. Falser, 173 N. Y. 404; § 1851, Code Civ. Pro. ■'^^ i8S4, Code Civ. Pro.; Hau- selt V. Patterson. 124 N. Y. 349; Haywood v. McDonald, 7 N. Y. Civ. Pro. Rep. 100. 31 ''s Lawrence v. Grout, 112 App. Div. 24s; Avery v. Avery, 52 Misc. 297; Trand v. Magues, 49 N. Y. Supr. 309; Hentz v. Phillips, 23 Abb. N. C. lis; Rogers v. Patter- son, 79 Hun, 483. ''^ Cleft V. Moses, 116 N. Y. 144, IS4, ISS; Haywood v. McDonald, 7 N. Y. Civ. Pro. Rep. 100, 102; Hill V. Moore, 131 App. Div. 365, 367. Cf. § 102, Decedent Estate Law; Dill V. Wisner, 23 Hun, 123. " § loi, Decedent Estate Law ; Fink V. Berg, 50 Hun, 211; Hau- selt V. Patterson, 124 N. Y. 349; Matter of Fielding, 30 Misc. 710, and this was the rule in equity when the heir was named, 2 Spence Eq. Juris. 312. 482 The Decedent Estate Law. § loi liable under this section the devise must be effectual to carry title, and not ineffectual.''* But it is not essential that the legal title shall have passed in all instances.'^" A judgment recovered against an executor is not evidence against the devisee of the testator's indebtedness, as there is no privity between the executor and the devisee.*" If land is charged with debts by a will this section has no application."^ In an action under this section all the devisees, or all the heirs- at-law, must be joined."^ The personal representatives can not be joined with the heirs or devisees, as the theory of their respective liabilities is different and incongruous.*' The right of defendants to counterclaim in actions of this nature is restricted.** But the heirs or devisees may answer, and prove that there are other debts of decedent of the same or a prior class as plaintiff's and properly chargeable against the land.*° It is denied that a judgment against the devisee under this sec- tion is entitled to a priority as against a prior judgment against the devisee personally.*" But as the theory of the statute is that the devise is subject to debts of decedent query. How far the rights of creditors under this section may be deter- mined in a partition suit, or in an equity action, in order to prevent circuity, is considered in several late cases, and there would seem to be no good reason why, if the proper parties are before the court, relief under this section should be refused in such cases.*^ This section must be read in connection with the next succeeding section of this act, as one is complementary of the other. '8 § loi, Code Civ. Pro. ; Maloney ^4 Mortimer v. Chambers, 63 Hun, V. Cronin, 7 St. Rep. 700. 335. 79 Dodge V. Stevens, 94 N. Y. 209, 85 Hauselt v. Patterson, 124 N. Y. 216; Armstrong v. McKelvey, 104 347, 357. id. 179, 184- s^Hagadorn v. Hart, 16 N. Y. 8" Burnham v. Burnham, 46 App. Supp. 625. Div. 513, affd., 165 N. Y. 659; Holly s? Hughes v. Golden, 44 Misc. 128; V. Gibbons, 176 N. Y. 520, 528. Hamlin v. Smith, 72 App. Div. 601, 81 § 102, Decedent Estate Law. 612 ; Colgan v. Dunne, 50 Hun, 443 ; 82>Dodge v. Stevens, 94 N. Y. 209; Olmstead v. Latimer, 158 N. Y. 313, § 1846, Code Civ. Pro. 317. ssHayward v. McDonald, 7 N. Y. Civ. Pro. Rep. 100; Greene v. Mar- tine, 27 Hun, 246. § I02 Charge on Lands. 483 § 102. Liability of heir or devisee not affected where will makes specific provisions for payment of debt. The preceding section and article two of title three of chapter fifteen of the code of civil procedure do not affect the lia- bility of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised, or makes it payable exclu- sively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal prop- erty, or to any other real property descended or devised. Formerly § 1859, Code of Civil Procedure: § 1859. This article not applicable when a will charges real prop- erty, etc. — This article does not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt ex- clusively upon the real property descended or devised, or makes it pay- able exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised.*^ Commentary. This section was transferred to the Code of Civil Procedure from the Revised Statutes,*" in the manner de- tailed under the prior section of this act, although it was an en- largement of an older legislative scheme for the relief of creditors. Indeed, the legislation in question began in 1774 or earlier.*" The scope of the entire legislative reform in question was in effect to charge lands with decedent's debts, both simple and specialty, to the same extent that they might be expressly charged by a will.°^ If lands were expressly charged in a will with pay- ment of debits it was deemed proper by the Legislature to declare that the statutory charge was inapplicable. Hence this section."^ Equity would probably have so declared in any event without the 88 Repealed by § 130, Decedent ^^2 R. S. 453. § 35; § 1859, Code Estate Law. Civ. Pro.; § 102, Decedent Estate 89 2 R. S. 453, § 35- Law. ^'^ Supra, pp. 478, 479- 81 Matter of Kinn, 136 App. Div. 8S2. 484 The Decedent Estate Law. § 102 aid of this section, for the protection of the Statute of Wills and in order to preserve the rights of testators freely to charge their lands by will. After the passage of the Revised Statutes, the same end was accomplished in England by statute, 3 & 4 William IV, chap. 104, making lands equitable assets for payment of debts, unless such debts were charged on the lands by will. It is obvious that in this State, in order to relieve particular lands from the statutory liability to respond equally or pro rata to the payment of debts,^^ the express charge on the lands by will must correspond with the requirements of this section.^* Other- wise section loi of the Decedent Estate Law will apply, and all lands will be equitable assets for the payment of debts. The section prescribes that the debts must be exclusively so charged on real property, or made payable exclusively out of the property descended or devised. When they are so charged cred- itors can only claim by force of the devise or charge,"^ and the proceeds of the estate so charged are distributable as legal, not equitable assets. If there is a testamentary trust for the payment of debts tiie remedy in like manner is to enforce the trust. In either event, section loi of this act has no application. Hence it becomes in all cases necessary to inquire whether in point of fact debts have been so charged on lands. Mr. Jarman in his work on wills affords some guide to the answer to this question, although the cases are only indirectly in point."" Sometimes land is expressly charged not only with debts but with the payment of legacies, but legacies are never included with debts, even by implication, and a charge of debts excludes legacies."' What amounts to a charge of debts on lands is sometimes a question of much nicety. At a time when lands were not assets for the payment of debts unless charged, the court laid hold of every implication to charge them. But the reason for such con- 83 § loi. Decedent Estate Law. Y. 210; Dunning v. Dunning, 82 »* § 102, Decedent Estate Law. Hun, 462, 467. Cf. Dill v. Wisner, 96 Holly V. Gibbons, 176 N. Y. 23 Hun, 123. 520, 526 ; Matter of Gantert, 136 96 2 Jarman on Wills, chap. XLVI. N. Y. 106; Mellen v. Mellen, 139 N. «'' Cf. Hoyt v. Hoyt, 85 N. Y. 142. § I02 Charge on Lands. 485 struction having long ceased,®' a will in order to operate under this section must now expressly charge lands exclusively with debts."* A devisee may be personally liable for debts charged on the land devised if he enter, and the condition expressed in the devise is that he shall pay the debts of testator.^ ssLupton v. Lupton, 2 Johns. Ch. Y. 159; Matter of Bingham, 112 N. 614; Matter of Thompson, 18 Misc. Y. 296, 314; Turner v. Mather, 86 143, 146. App. Div. 172, 176. 89 § 102, Decedent Estate Law; 1 Gridley v. Gridley, 24 N. Y. 130; Matter of City of Rochester, no N. Dell v. Wisner, 23 Hun, 123. 486 The Decedent Estate Law. § 103 § 103. Action against husband for debts of deceased wife. If a surviving husband does not take out letters of admin- istration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts, and is Hable therefor. A husband is Uable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to the executors or administrators as part of his per- sonal property, but are liable for her debts in preference to the creditors of the husband. (As amended, § IS, chap. 240, Laws of 1909). Formerly a part of § 2660, Code of Civil Procedure: § 2660. Who entitled to letters of administration. — * * * If a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts, and is liable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors or admin- istrators as part of his personal property, but are liable for her debts in preference to the creditors of the husband.^ * ♦ * * This part of § 2660, Code of Civil Procedure, was taken bodily from 2 R. S. 75, § 29: § 29. A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bond as other persons, but shall be liable as administrator, for the debts of his wife, only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be pre- sumed to have assets in his hands, sufficient to satisfy her debts, and shall be liable therefor: and if he shall die, leaving any assets of his wife unadministered, they shall pass to his executors or administrators, as part of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband.' Commentary. The history of the husband's prior right to administration on the estate of his wife has been traced in the 2 Repealed, § 130, Decedent Estate s Repealed by chap. 686, Laws of Law 1893. § I03 Action Against Husband for Wife's Debts. 487 text under section 100 of this act, and need not be repeated* The subject-matter of this section is derived from the Statute of Frauds, which confirmed the husband's right to administration.'^ A like provision was frequently re-enacted in this State in the authorized revisions, made prior to the Revised Statutes.'^ The Revised Stat- utes in re-enacting it somewhat amplified the provision, by making the husband's failure to administer presumptive evidence of assets, and by declaring the law, otherwise stated, that his executors or administrators succeeded to this title to sio administer, but giving her debts a preference to her assets. In the event that he took ■out letters he was liable for her debts only to the extent of assets received.^ If a surviving husband die without having taken out letters on his wife's estate, in a case where he was entitled so to take, his exiecutors or administrators are entitled to letters on the wife's es- tate.* If, in a case where the deceased husband was entitled to adiminister, a wife's sister procures letters, the letters to her will be revoked and letters granted to the husband's representatives.^ For further citations on this section, see the text under section 100, Decedent Estate Law.^° At the present time, a husband who survives a wife dying intes- tate without descendants is still entitled to administer her estate if he so elect. Even without administration, if the wife die intes- tate and without descendants, the husband is enabled to retain jure mariti, but subject to her debts, all her personal property.^^ * Supra, pp. 472-477. Decedent Estate Law ; McCosker v. 5 22 and 23 Car. II, chap. 10. Golden, i Bradf. 64; Lush v. Al- 6 2 J. & V. 71, § S ; I K. & R. S39, burtus, : id. 456 ; Vallance v. § 16; I R. L. 314, § 17- Bausch, 8 Abb. 368, 28 Barb. 633; '2 R. S. 75, § 29, now § 103, De- Matter of Harvey, 3 Redf. 214; •cedent Estate Law ; Matter of Shumway v. Cooper, 16 Barb. 556, Thomas, 33 Misc. 729. 560, approved, 22 N. Y. no, 113; 8 Matter of Strutzkober, 37 St. Barnes v. Underwood, 47 N. Y. 351 ; Rep. 939, 14 N. Y. Supp. 501. Cf. Robins v. McClure, 100 id. 328; § 121, Decedent Estate Law. Matter of Bolton, 159 id. 129, 133; 9 Matter of Harvey, 3 Redf. 214; Matter of Nones, 27 Misc. 165; Lusk V. Alburtus, i Bradf. 456; Matter of McLeod, 32 id. 229; Matter of Thomas, 33 Misc. 729. Matter of Thomas, 33 id. 729. Cf. i^o Supra, pp. 472-477. Matter of Green, 68 id. I. 11 § 2660, Code Civ. Pro.; § 103, 488 The Decedent Estate Law. § 104 § 104. Application of certain sections in this article. Section twenty-five hundred and fourteen of the code of civil procedure is applicable to the provisions of sections ninety-eight to one hundred, both inclusive, and section one hundred and three, of this chapter. Added by § 16, chap. 240, Laws of 1909, to the Decedent Estate Law. Comment. This section was enacted for more abundant pre- caution. For the convenience of our readers section 2514, Code of Civil Procedure, thus referred to in this section of the Decedent Estate Law, is here inserted. It is as follows : § 2514. (Amd. 1900.) Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. The word "intestate"' signifies a person who died without leaving a valid will; but where it is used with respect to particular property, it sig- nifies a person who died without effectually disposing of that property by will, whether he left a will or not. 2. The word " assets " signifies personal property applicable to the pay- ment of the debts of a decedent. 3. (Amd. 1900.) The word " debts " includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action ; and the word " creditor " includes every person having such a claim or demand, any person having a claim for expense of administration, or any person having a claim for funeral expenses. L. 1900, chap. 120. In effect Sept. i, 1900. 4. The word " will " signifies a last will and testament, and includes all the codicils to a will. 5. The expression " letters of administration," includes letters of tem- porary administration. 6. The expression "testamentary trustee," includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions, as executor or administrator. 7. The word " surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. § I04 Application of Statute. 489 8. The expression " judicial settlement," where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made con- clusive upon the parties to the special proceeding, either for all purposes, or for certain purposes, specified in the statute; and an account thus made conclusive is said to be "judicially settled." 9. The expression " intermediate account " denotes an account filed in the surogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands and not made the subject of a judicial settlement. 10. The expression " upon the return of a citation,'' where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression ''person interested," where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, asgignee, grantee or otherwise, except as a creditor. Where a provision of this chapter pre- scribes that a person interested may object to an appointment, or may apply for an inventory, an account, or increased securij:y, an allegation of his interest, duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree or other final determination, and no appeal therefrom is pending. 12. The term " next of kin " includes all those entitled, under the pro- visions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression " real property " includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word " inheritance " signi- fies real property, as defined in this subdivision, descended as prescribed by law. The expression " personal property " signifies every kind of prop- erty, which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator. [Omitted Sections. At present section 104 is the last of the sec- tions of Article 3 of the Decedent Estate Law, the intervening sec- tions between section 104 and section no being omitted.] 490 The Decedent Estate Law. § ho ARTICLE 4 Executors, Administrators and Testamentary Trustees Section no. Sales of real estate by executors under authority of will. 111. ^Investment of trust funds by executor or administrator. 112. Executors de son tort abolished. 113. Special promise to answer for debt of testator or intestate. 114. Liability of executors and administrators of executors and administrators. 115. Rights of administrators de bonis non. 116. Actions upon contract by and against executors. 117. Administrators to have same rights and liabilities as executors. 118. Actions of trespass by executors and administrators. 119. Actions of trespass against executors and administrators. 120. ^Actions for wrongs, by or against executors or administrators. 121. ^Action or proceeding by executor of executor. 122. Appraisal of estate of deceased person. § 110. Sales of real estate by executors under authority of will. Sales of real estate situate within the state of New York, made by executors in pursuance of an authority given by any last will, unless otherwise directed in such will, may be public or private and on such terms as in the opinion of the executor shall be most advantageous to those interested therein. Formerly Laws of 1883, chap. 65, § i : § I. Sales of real estate situate in the city and county of New York, or at any other place within the State of New York, made by executors in pursuance of an authority given by any last will, unless otherwise directed in such will, may be public or private and on such terms as in the opinion of the executor shall be most advantageous to those interested therein.^ Comment. As a general proposition of law, where executors do not expressly take a fee, they have nothing to do with the real 1 So in original. Cf. title, § in, ^ Rgpeajgd by § 130, Decedent Es- Decedent Estate Law. tate Law. 2 As amended by chap. 240, Laws of 1909. § no Executors' Sales. 491 estate of the testator, unless there is a conversion made by the will, or an express devise to them of a power of sale.* But by provision of the statute, executors and administrators may have recourse to the real property of testators when it is necessary for the discharge of debts.^ Where there is a mandatory power of sale in a will, the statute relating to sale for payment of debts is not however relevant.'' A power of sale is a trust of a power, or as it is now called by statute a " power in trust," and it can be executed only in the manner and for the precise purposes declared .and intended by the donor.'' In the absence of express directions in the will itself, sales pur- suant to trusts of powers are as a general rule subject to the rules regulating other trusts, and the executor or trustee of a power is subject to those rules which a court of equity follows, and the con- science of the court furnishes the exacting standards for the execu- tion.* It was for a long time a question, whether a trustee for sale simpHciter was not absolutely bound to sell in all cases at public sale. It was finally held that such sale may be by public auction or private contract, according as one or other mode is most advan- tageous under the circumstances." But this vague ruling leaves so many questions open that trustees usually are advised to sell at pub- lic auction.^" Occasionally acts of the Legislature direct the mode of sale,^^ and then the statute is controlling.^^ This section of the Decedent Estate Law, now under consideration, is certainly calculated to relieve from some embarrassment those executors who act under a power of sale which does not in its limita- tion expressly regulate the manner of the sale.^^ This section affords to such executors a wider and more liberal margin of discretion than ■*■ Russell V. Russell, 36 N. Y. 581, 484; Minuse v. Cox, 5 Johns. Ch. 583. See Fowler's Real Prop. Law 441, 446. (3d ed.), 469. ^Lewin on Trusts, 434; Perry on 5§§ 2472, 2750, Code Civ. Pro.; Trusts, §§ 780, 782. In re Place, i Redf. 276. i" Perry on Trusts, § 781. 6 § 2749, Code Civ. Pro. ; Matter of 11 See Insolvent Debtors' Act, 7 Gantert, 136 N. Y. 106; Holly v. Geo. IV, chap. 57, § 20, and 2 R. S. Gibbons, 176 id. 520, 526. 545. '§§ 99, 172, Real Prop. Law; i^ Lawrence v. The Farmers' Loan Hetzel v. Barber, 69 N. Y. i. and Trust Co., 13 N. Y. 200. *2 Spence, Eq. Juris. 917; 2 Sug- i' § 172, Real Prop. Law. den, Pow. 487; Lewin on Trusts, 492 The Decedent Estate Law. § ho did the stricter rules administered in courts of equity.^* Under this section executors acting under a power or authority to sell have statutory authority to sell either by pubUc, or by private, sale, unless the grant of the power expressly prescribes the mode of sale. For- merly when the terms of such sale were left to the executors' sole discretion, the discretion of the executors was the discretion which the chancellor thought equitable.^" Thus it is apparent that this sec- tion is a very important qualification of the former rules in equity. In any charge of a breach of trust by executors by reason of a pri- vate or improvident sale for an inadequate price, this section is en- titled to receive great consideration, and its precise meaning deter- mined. That it is not intended to be declaratory of the former law on the subject seems apparent. That its application may be subject to very important qualifications in cases of actual fraud or negligence is also evident. But its precise reference to the older doctrines relat- ing to the execution of trusts to sell does not seem to be fully deter- mined by the adjudications of this State. "§§ 770, 780, 781, Perry on Trusts. ^^ See above under this section, p. 491- § III Investment of Trust Funds. 493 § 111. Investment of trust funds. An executor, adminis- trator, trustee or other person holding trust funds for invest- ment may invest the same in the same kind of securities as those in which savings banks of this state are by law author- ized to invest the money deposited therein, and the income derived therefrom, and in bonds and mortgages on unin- cumbered real property in this state worth fifty per centum more than the amount loaned thereon. Any executor, ad- ministrator, trustee or other person holding trust funds may require such personal bonds of guaranties of payment to accompany investments as may seem prudent, and all pre- miums paid on such guaranties may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one-half of one per centum per annum on the par value of such investments. But no trustee shall purchase securities hereunder from himself. Transcribed from § 21, Personal Property Law of 1909. § 21. Investment of trust funds. A trustee or other person holding trust funds for investment may invest the same in the same kind of securi- ties as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived therefrom, and in bonds and mortgages on unincumbered real property in this state worth fifty per centum more than the amount loaned thereon. A trustee or other person holding trust funds may require such personal bonds or guarantees of payment to accompany investments as may seem prudent, and all pre- miums paid on such guaranties may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one-half of one per centum per annum on the par value of such invest- ments. But no trustee shall purchase securities hereunder from himself. Formerly § 9 of the " Personal Property Law,'' chap. 47, General Laws, as amended by chap. 295, Laws of 1902 and chap. 669, Laws of 1907, as follows : § 9. Investment of trust funds. — An executor, .administrator, guardian, trustee or other person holding trust funds for investment may invest the same in the obligations of a city of this state issued pursuant to law.i^ 16 Repealed except part relating to persons by § 80 of art. 5 of Pers. guardians and executors, administra- Prop. Law of 1909- tors and other trustees of deceased 494 The Decedent Estate Law. § iii CHAP. 29S. An Act to amend the personal property law, relative to investment of trust funds. Became a law, April 2, 1902, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: Section i. Section nine of chapter four hundred and seventeen of the laws of eighteen hundred and ninety-seven, entitled "An act in relation to personal property, constituting chapter forty-seven of the general laws " is hereby amended to read as follows : § 9. Investment of trust funds.— An executor, administrator, guardian, trustee or other person holding trust funds for investment may invest the same in the same kind of securities as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived therefrom, and in bonds and mortgages on unincum- bered real property in this state worth fifty per centum more than the amount loaned thereon. § 2. This act shall take effect immediately. i^^ CHAP. 669. An act to amend the personal property law, relative to holders of trust funds requiring personal bonds or guaranties of payment. Became a law, April 20, 1907, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: Section I. Section nine of chapter four hundred and seventeen of the laws of eighteen hundred and ninety-seven, entitled "An act in relation to personal property constituting chapter forty-seven of the general laws," as amended by chapter two hundred and ninety-five of the laws of nineteen hundred and two, is hereby further amended to read as follows : § 9. Investment of trust funds. — An executor, administrator, guardian, trustee or other person holding trust funds for investment may invest the same in the same kind of securities as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived therefrom, and in bonds and mortgages on unincumbered real property in this state worth fifty per centum more than the amount loaned thereon. Any executor, administrator, guardian, trustee or other 16a Repealed except part relating to persons by § 80 of art. 5 of Pers. guardians and executors, administra- Prop. Law of 1909. tors and other trustees of deceased § III Investment of Trust Funds. 495 person holding trust funds may require such personal bonds or guaranties of payment to accompany investments as may seem prudent, and all pre- miums paid on such guaranties may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one- half of one per centum per annum on the par value of such investments. But no trustee shall purchase securities hereunder from itself. § 2. This act shall take effect immediately.^'' Section 9 of the former Personal Property Law (quoted above) was originally taken from chapter 65, Laws of 1889. CHAP. 6s. An Act authorizing the investment of trust funds in stocks or bonds of any of the cities of this state. Approved by the Governor March 14, 1889. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: Section i. It shall be lawful for executors, administrators, guardians and trustees and others holding trust funds for investment to invest the funds so held by them in trust in bonds or stocks of any of the cities of this state issued pursuant to the authority of any law of this state.i' § 2. This act shall take effect immediately.^' Investments by Trustees. Formerly (and the rule has not been materially changed by this section of this act), if the instrument creating the trust directed the trustee to make investments of a cer- tain kind, a neglect to follow the directions might be a breach of trust,^" and, conversely, if he followed the directions and any loss ensued, he was not responsible.^^ "Repealed by § 80 of art. S of 213 Pomeroy, Eq. Juris. 647; Pers. Prop. Law of 1909, except as Denike v. Harris, 84 N. Y. 89, 94; to guardians, etc. Dunklee v. Butler, 30 Misc. Rep. 18 Repealed by Pers. Prop. Law, 38; Matter of Hunt, 121 App. Div. art. HI, chap. 417, Laws of 1897. 96; Spencer v. Weber, 163 N. Y. 1' Repealed by the Pers. Prop. Law, 493 ; Lawton v. Lawton, 35 App. Div. art. HL chap. 417, Laws of 1897. 389. Cf. Matter of Wotton, 59 App. 2i>Birrell, Duties and Liabilities of Div. 584, 586; Matter of Hall, 164 Trustees, Lecture IV; Denike v. N. Y. 196. Harris, 84 N. Y. 89, 94; Meldon v. Devlin, 20 Misc. 56; Clark v. Clark, 23 id. 272. 496 The Decedent Estate Law. § ill Where the instrument creating a trust leaves it to the trustee's discretion, or is silent respecting the mode and character of his in- vestments, either statutes, or else the courts possessing jurisdiction over trusts, usually prescribe, directly or indirectly, what character of investments will relieve such trustee from personal responsibility for a breach of duty to make prudent and safe investments.^^ Trus- tees might formerly invest in first mortgages of estates in fee simple, if adequately secured by such real estate, situate in this State ;-^ also in New York State bonds, and in United States government securi- ties.^* Investments in stocks, leaseholds,^''' personal obligations, se- curities of foreign States, or in second mortgages and the like, were at the trustees' risk.^^ Chapter 65, Laws of 1889, set out above, first added the securities of the municipalities of this State to the list of authorized investments. General Guardians. General guardians must have leave to invest their ward's property in real estate.-^ Investments Already on Hand. If a trustee takes over with a trust investments of a kind unauthorized in law, and retains them, without any such direction by settlor, he renders himself liable 22 See above, § iii of this act; N. C. 447; Mills v. Hofifman, 26 King V. Talbot, 40 N. Y. 76; Adair Hun, 594; Matter of Wotton, 59 V. Brimmer, 74 id. 539, 550; Dunklee App. Div. 584. Cf. Sherman v. Par- V. Butler, 30 Misc. 58; Matter of ish, 53 N. Y. 483. Reed, 45 App. Div. 196; Matter of 25 Matter of Stark, 39 N. Y. St. Hall, 48 id. 488, modified, 164 N. Y. Rep. 393; s. C, 15 N. Y. Supp. 729; 196; Matter of Menzie, 54 Misc. 188. Matter of Decker, 37 Misc. 527. Cf. Lawton v. Lawton, 35 App. Div. ^^ Ibid., supra, and In re Kettletas, 389. 6 N. Y. Supp. 668 ; Matter of Petrie, 23 Ackerman v. Emott, 4 Barb. 626 Delafield v. Schuchardt, 2 Dem. 435 Chesterman v. Eyland, 81 N. Y. 398 Matter of Reed, 45 App. Div. 196 5 Dem. 352; Judd v. Warner, 2 id. 104; Fellows V. Longyor, 91 N. Y. at p. 328; Gillespie v. Brooks, 2 Redf. 349; Warren v. Union Bank of Matter of Ball, 55 id. 284, 287; Mat- Rochester, 157 N. Y. 259; Matter of ter of Wotton, 59 id. 584. Reed, 45 App. Div. 196 ; Matter of 2* Wiggins v. Howard, 83 N. Y. Hall, 48 id. 488, modified, 164 N. Y. 613; Ormiston v. Olcott, 84 id. 339, 196; Matter of Menzie, 54 Misc. 188. 343; Roosevelt v. Roosevelt, 6 Abb. 27 Matter of Decker, 37 Misc. 527. § III Investment of Trust Funds. 497 thereby. It is his duty to part with them and reinvest in legal securities.^* Disposal of Trust Funds. A trustee must not commingle trust funds in a bank with his own funds, and if he do and loss ensue he must bear it.^° Present Law Regulating Trustees' Investments. This section now specifies particularly the class of investments proper for trus- tees. But it does not expressly prohibit other investments. As the law regulates with care the investments proper for savings banks, those laws are now practically extended to trustees of personal prop- erty, and authorize such trustees to acquire and hold the same securities as banks for savings. Chapter 813, Laws of 1895, author- ized trustees of savings banks to invest in obligations of the United States, obligations of this State, or any other State not in default for ten years past. Chapter 328, Laws of 1903, added stocks or bonds of any city, county, town or village of this State, if issued pursuant to the authority of .any law of the State. Chapter 581, Laws of 1906, authorized savings banks to invest in municipal bonds of cities of other States of the Union if situated in a State admitted to the Union prior to January i, 1896, and if the city is not in de- fault since January i, 1861, and contains not less than forty-five thousand inhabitants and corresponds with the other particulars speci- fied in the statute last mentioned. Chapter 401, Laws of 1905, and chapter 581, Laws of 1906, further regulate investments of banks for savings. All these laws are now consolidated in the Banking Law, section 146, chapter 2, Consolidated Laws. Premiums and Amortization. The restricted character of trustees' investments : ( i ) Bonds and mortgages on property in this State worth fifty per cent, more than the amount loaned; (2) Se- curities in which banks for savings may invest — causes the latter 28 Matter of Wotton, 49 App. Div. 436; s. c,. 2 N. Y. Supp. 844; Steele 584; Matter of Reed, 45 id. 196; v. Leopold, 135 App. Div. 247, 255. In re Wolfe's Estate, 2 N. Y. Supp. 2' Mumford v. Murray, 6 Johns Ch. 494, revd. on another point, S id- 634. i; Matter of Stafford, 11 Barb. 353; Cf. Matter of Menzie, S4 Misc. 188; Steele v. Leopold, 135 App. Div. 247. Jones V. Jones, 19 N. Y. St. Rep. a2 498 The Decedent Estate Law. § iir class of investments to command a premium. This premium the trustee is authorized to pay.^" He, accordingly, must charge it either against income or against principal. If the premium is charged against income it certainly should not be written off at one time, but should be absorbed by what is termed amortization,^^ or in other words by deducting from the annual yearly income a sum sufficient to sink the premium at the maturity of the obligation.^^ Breaches of Trust. In some cases beneficiaries encourage trustees to hold on to depreciated and improper securities, or they connive at and acquiesce in trustees' investments. In such cases the beneficiaries may be precluded from questioning the propriety of the investments.^^ It is the duty of a trustee who speculates with trust funds to dis- affirm his own acts, and restore or recover the funds misapplied.^* so Brown v. Chesterman, 30 N. Y. 202; Adair v. Drummer, 74 N. Y. St. Rep. 537, 9 N. Y. Supp. 187. 539, S53; Matter of Hall, 164 N. Y. 51 New York Life Ins. & Trust Co. 196, 201 ; Woodbridge v. Bockes, 59 V. Barber, 165 N. Y. 484; Matter of App. Div. 503, S8i ; Raley v. Ride- Stevens, 187 id. 471. halgh, 7 DeG., M. & G. 104; Sawyer 32 A very intelligent little book on v. Sawyer, 28 Ch. D. 598; BirrelU Amortization was lately published by Duties of Trustees, ii8 seq. the Guaranty Trust Co. of New 't Steele v. Leopold, 135 App. Div. York city. 247, 254, 255. 33 Matter of Reed, 45 App. Div. § 112 Executor De Son Tort. 499 § 112. Executors de son tort abolished. No person shall be liable to an action as executor of his own wrong, for hav- ing received, taken or interfered with, the property or effects of a deceased person; but shall be responsible as a a wrong-doer in the proper action to the executors, or general or special administrators, of such deceased person, for the value of any property or efifects so taken or received, and for all damages caused by his acts, to the estate of the deceased. Formerly 2 R. S. 449, § 17. i 17. No person shall be liable to an action as executor of his own wrong, for having received, taken or interfered with, the property or effects of a deceased person; but shall be responsible as a wrongdoer in the proper action to the executors, or general or special administrators, of such de- ceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts, to the estate of the deceased.'^ Executors De Son Tort. Prior to the Revised Statutes any stranger, who, without authority, wrongfully took upon himself the character of an executor or meddled in any way with the assets for- merly of a person deceased, was treated in law as an executor of his own wrong (de son tort), and was held liable to all the trouble of an executorship without any of the profits or advantages thereof.^* It is generally said that an executor de son tort could not retain or deduct for his own debt.^^ But by statute he might do so in this State.'^ The Revised Statutes, in any event, abolished any such right of retention.^" The Revised Statutes expressly provided also that no person wrongfully receiving assets should be liable thereafter as an exec- utor de son tort, but was to be accountable for such assets or their 85 Repealed, § 130, Decedent Estate " Thomas v. N. Y. Life Ins. Co., i^aw. So N. Y. Sup. 225, 235; Mo. 527; " Wentworth, Office of Executor, Poph. 125 ; i Williams on Execu- (ed. 1589). 57. S8; 4 Burn's Ecc. tors, 156; sed cf. 43 Eliz. chap. 8. Law, 307; 2 Black. Comm. 507; ssg J. & V. 44, § 7; i K. & R. Goodeve, Pers. Prop. (3d ed.), 360; 538, § 12; i R. L. 313, § 13. I Williams on Executors, 148; 3 '82 R. S. 81, § 60; and see note Holdsworth, Hist. Eng. Law, 450. 35, Appendix II, infra. 500 The Decedent Estate Law. § 112 value and damages to the lawful executors or administrators.*" These complementary provisions of the Revised Statutes referred to above remain on the statute book, and in reference to the old law they can not be understood separately or apart.*^ In the old law the executor de son tort played a very important part. The ecclesiastical courts could compel him to take out letters of administration or probate.*^ If a man got goods of deceased in his hands after probate it did not make him an executor de son tort.*^ The fiction of an executor de son tort was largely remedial in inten- tion, and doubtless designed to enforce a constructive trust. In so far as an executor de son tort was recognized by the courts of com- mon law, it furnishes an early example of a trust administered in a court of law, and as in the instance of a bailment shows how easily courts of law could have obtained an equitable jurisdiction had there been any real disposition to assert it. The Revised Statutes in effect much altered the prior law relating to executors and administrators. Not only were executors de son tort expressly abolished, but any executor or administrator ceased thereafter to be the mere representative of the persona of the de- ceased, and was constituted a trustee for the creditors of the deceased. This was an immense and comprehensive change in the theory of the prior law relative to the status of executors or admin- istrators.** Before proceeding to consider the construction accorded by the courts to this section of the Decedent Estate Law, let us glance for a momient at the theory which underlies the existing law relative to executors. Executors. An executor is now defined as one appointed by the testator to carry the will into effect or execution after the tes- tator's decease and to dispose of the property according to the tenor ** 2 R. S. 449, § 17, and see note ^ Rayner v. Green, 2 Curteis, 248. 3S. Appendix 11, infra; Muir v. ^^4 Burn's Ecc. Law, 307. Trustees of the Leake & Watts Or- ** Dox v. Backenstose, 12 Wend. phan House, 3 Barb. Ch. 477. 542; Thomas v. Cameron, 16 id. 41 § 2706, Code Civ. Pro.; § 112, 579; Porter v. Williams, 9 N. Y. Decedent's Estate Law. Cf. Matter 142, 149; McKnight v. Morgan, 2 of Richardson, 8 Misc. 140, 142; and Barb. 171; Matter of Raymond, 27 see § 2613, Code Civ. Pro.; Matter Hun, 508, 511. of Fithian, 44 Hun, 457, 460. § 112 Executor De Son Tort. 501 of the will."' In the older law he was openly said to answer to the " haeres designatus" or testamentarius of the civil law.*° This was during the period of the upbuilding of the modem law of executors. The early law of England knows no law of executors. The priest or a friend executes the wishes of a dying man.*^ The recognition of the executor first appears in Glanvill.*' But it is only after the establishment of the ecclesiastical jurisdictions, alluded to in our Introduction,*" that we perceive in England a certain conflict be- tween those legal conceptions of an executor which were founded on the Roman law relative to a universal succession'" and those other conceptions of an executor which were founded on the early Ger- manic law governing a Salman, who was a sort of trustee to dis- tribute an estate.'^ These dififerent theories relative to tlie office of the executor have received much learned consideration from his- _ torical jurists ; but they may be readily detected, without their aid, from many of the assertions of the old writers who first treat sys- tematically of the law of executors.'^ This is not, however, the place to consider in detail the fundamental theories which have in- fluenced the growth of the modern law of executors. It will suffice to point out, that the modern executor is not a universal successor like the Roman heres; nor is he a mere confidential agent like the Germanic " Salman." He is clearly a compound of both, and his present office is largely the result of the conflict between the ecclesias- tical and the common law jurisdictions familiar to English-spealcing political communities.'" In the Roman law the heir was a universal successor, and in taking over the " hereditas " or heirship the heir stepped into the shoes of the deceased, enjoying his rights and burdened with his responsi- bilities. The heir was a continuation of the persona of the deceased.'* «2 Black. Comm. 503; Matter of i Law Quar. Rev. 162; Holmes, Kear, 133 App. Div. 265, 269. Common .Law, 340-352; 3 Holds- *6 Terms de Ley ; Tomlins' Diet. worth, Hist. Eng. Law, 444. «2 Holdsworth, Hist. Eng. Law, 62 Wenthworth on Office of Ex- 84. ecutor (ed. 1589) ; Godolphin on •*« Glanvill, L. VH, chap. 6. Wills ; Swinburne on Wills. 49 Supra, pp. 19, 28. '5 See Introduction, pp. 3, 26, 27, ^Hereditas: Bonorum possessio. supra. 61 Holmes, Early English Equity ; " D. 50, 17, 59. 502 The Decedent Estate Law. ' § II2 We doubtless find much of this principle of the Roman law in the ap- plication of the familiar common-law maxim, that the heir or executor is eadem persona cum antecessore.^^ We find it sometimes asserted not only in Anglo-American law relative to executors but in spheres as remote as that relating to covenants running with the land.^° But we also find principles of the Germanic law relating to a Salman cropping out, not only in the law relating to executors, but in sub- jects as far removed as uses and trusts.'^ Such is the sequence of legal institutions that there is never an abrupt fracture of the chain of development. Most legal institutions have a distinct growth. In English law it was doubtless the " executor " and the " heir " combined who divided between them the duties and the obligations of the Roman " heres." ^' In the Roman law there could be no will without the appointment of an heir,^" and this fact undoubtedly led to the assertion by the ecclesiastical courts in England, that there ■could be no will without an executor"" — an assertion, however, ulti- mately repudiated, at first by courts of equity,*"^ and then generally.*'' It has been even lately asserted that in English law the legal rela- tionship between a deceased person and his executor is wholly dif- ferent from that of the deceased person and his administrator, and " that the executor is the heir of the deceased." "' But however true this may have been at the earlier stages of legal development, it is certainly less true now, and the present tendency is to regard both executors and administrators as mere officers of the ordinary, or Court of Probate, to distribute assets, with an accountability pri- marily to creditors and secondarily to the beneficaries under the will, or if no will, to those entitled by the Statute of Distributions. The S5 Oates V. Frith, Hob. 130. Bro. Abr. Tit. Testament, 20 ; Noys B6 Fowler's Real Prop. Law (3d Rep. 12 ; Mosely, 302. Cf. 3 Atk. ed.), 867. 200; Markby, Elements of Law, 6' Fowler's Real Prop. Law (3d § 570 ; Williams on Executors, 6, 7 ; ed.), 439. and see p. 3, supra. 68 Holmes, Common Law, 352 ; and ^^ Wyrell v. Hall, 2 Rep. Chanc. see Lord Hardwicke, in Androvin v. 59. Poilblanc, 3 Atk. 300, 304. ^2 Williams on Executors, 7. 63 Fr. 10, D. 29, 7. «2 Markby, Elements of Law, 60 Wentworth on Office' of Execu- § 570; Holmes, Common Law, 350. tor (ed. isSg), P- 3; Swinb. pt. i, Cf. Shep. Touch. 474. § 3 ; Godolph. pt. 2, chap. S, § i ; §112 Executors De Son Tort. 503 superior continuation of the juristic status of the deceased by exec- utors tends to became a mere fiction. °* Neither executors nor admin- istrators have any longer even preference as to payment of their own •debts.''^ They have both become unfavored officers of justice, ac- countable in the surrogates' courts for all their actions in respect of their testator's estate. "^ Formerly there was a tendency to regard the title of an adminis- trator as dating only from the granting of letters,"'' although an executor's title dated from the death of testator. "' But now, as it is sometimes said, by relation the title of both takes effect from the death of decedent."' The theory of relation being a ^mere fiction, has been justly criticized; for if an executor's title was by virtue of the will only, there was no room for the doctrine of relation in his case, and yet the theory of relation was applied to executors also.'" The difference between the date of the title of executors and that of administrators now tends to disappear in this State,'^ although there is doubtless a distinction between title and authority.'^ The title of the executor was formerly dependent wholly on the will, and not on the probate,'^ whereas the title of the administrator 6* Wilson, Modern English Law, §§ 568, 569; Goodeve, Pers. Prop. 40; § 117, Decedent Estate Law; (3d ed.,) 362; Kaufman v. Schoef- Jackson ex dem., etc. v. Robinson, 4 fel, 46 Hun, 571, affd., 113 N. Y. Wend. 436, 441 ; Porter v. Williams, 635. Cf. Throop on Verbal Agree- 9 N. Y. 142, 149. Cf. Markby, Ele- ments, § 21. ments of Law, § 572. 'i Dox v. Backenstose, 12 Wend. «5 2 R. S. 84, § 13; id. 88, § 33; 542; Porter v. Williams, 9 N. Y. §§ 2719, 2731, Code Civ. Pro.; 142, 149; McKnight v. Morgan, 2 O'Flynn v. Powers, 136 N. Y. 412, Barb. 171 ; Matter of Raymond, 27 419; Joseph V. Herzig, 198 id. 456, Hun, 508, 511. 462. '2 Cf. Hartnett v. Wandell, 60 85 Joseph V. Herzig, 198 N. Y. N. Y. 346 and Dodd v. Anderson, 456, 462. 197 id. 466, 471- 6' Williams on Executors (2d ed.), 'SHensloe's Case, 9 Rep. 38a; 264. Graysbrook v. Fox, I Plowd. 281 ; «8 Williams on Executors (2d Smith v. Milles, i T. R. 480; Mur- ed.), 172; Goodeve Pers. Prop. (3d ray v. Blatchford, i Wend. 583, 616; ed.), 362, 363. Van Home v. Fonda, 5 Johns Ch. s'Babcock v. Booth, 2 Hill, 181, 388, 403; Hartnett v. Wandell, 60 184; Priest V. Watkins, 2 id. 225; N. Y. 346; Shep. Touch. 474; Thomas v. Cameron, 16 Wend. 579; Throop on Verbal Agreements, § 2T. § 2613, Code Civ. Pro. Sed cf. Thomas v. Cameron, 16 '"Markby, Elements of Law, Wend. S79- 504 The Decedent Estate Law. '§112 was always dependent on the courts* But at the present day the executor's authority, like that of the administrator, seems to depend, at least to some extent, on a decree," although in the case of a de- vise of real property no probate whatever is necessary to carry either title or authority to others than executors." Construction of this Section. The remedy against a person who detains assets belonging to one deceased is now obtained by an action brought by the latter's executor or administrator duly ap- pointed.''^ Formerly such relief could be obtained only in equity'* or by a creditor who sued the detainer as executor de son tort. Since the Revised Statutes a creditor can no longer sue charging such re- cipient of assets, or a delinquent detainer of assets, as an executor de son tortJ^ But where the executor or administrator refuses to sue, it would seem that a creditor may in some instances still bring an action to set aside a transfer as fraudulently made by the testator in his life- time.*" '^Waukford v. Waukford, I Salk. The Nat. Bank of West Troy v. 301; Shep. Touch. 474; Rockwell v. Levy, 40 N. Y. St. Rep. 331, 332; Saunders, 19 Barb. 473. §§ 2706-2710, Code Civ. Pro. '62 R. S. 71, § 16; § 2613, Code 'sPettibone v. Drakeford, 37 Hun, Civ. Pro. ; Thomas v. Cameron, 16 628, 632 ; Matter of Blow, 32 N. Y. Wend. 579; Campbell v. Browne, S St. Rep. 290, 293. Paige, 34, 36; Dodd v. Anderson, "§ 112, Decedent Estate Law; 197 N. Y. 466, 471 ; Matter of Kear, McKnight v. Morgan, 2 Barb. 171 ; 133 App. Div. 26s; Higgins V. Eaton, Bate v. Graham, 11 N. Y. 237; The 178 Fed. Rep. 153, 155. Nat. Bank of West Troy v. Levy, '8 Dixon V. Cozine, 64 Misc. 602, 40 N. Y. St. Rep. 331, 332; Hender- 603; supra, pp. 303, 304. son v. Brooks, 3 T. & C. 445, 448; " § 112, Decedent Estate Law; Leonard v. Clinton, 26 Hun, 288, Babcock v. Booth, 2 Hill, 181, 185; 293. Cf. Vermilya v. Beatty, 6 Barb. Muir v. Trustees of Leake and 429. Watts Orphan House, 3 Barb. Ch. '"Loomis v. Tift, 16 Barb. S41 ; 477; Matter of Raymond, 27 Hun, Bate v. Graham, 11 N. Y. 237; Har- 508, 511; Matter of Richardson, 59 vey v. McDowell, 113 id. 526, 531; N. Y. St. Rep. 483, 8 Misc. 140, 142; N. T. Bank v. Wetmore, 124 id. 251. §113 Statute of Frauds. 505 § 113. Special promise to answer for debt of testator or intestate. No executor or administrator shall be charge- able upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memoran- dum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorized. Formerly 2 R. S. 113, § i. § I. No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some mem- orandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially author- ized.*^ Comment. This section is taken indirectly from the first sub- division of the 4th section of the Statute of Frauds,'^ re-enacted in this State on different occasions *^ anterior to the Revised Statutes.** The personal liability of an executor to answer out of his own estate for waste is even now a large one, and the tendency, before the Statute of Frauds, was to so far identify the executor with the de- ceased in all cases as to make him constructively liable for the debts of the deceased.*'' The first subdivision of the 4th section of the Statute of Frauds relating to the personal liablity of executors has perplexed some lawyers, and they do riot perceive any good reason why a separate clause was necessary to protect executors, when the next subdivision of the Statute of Frauds expressly provided, that no one should be charged upon any promise to answer the debt, default or miscarriage 81 Repealed by § 130, Decedent Es- § 11. See Fowler's Pers. Prop. Law tate Law. (2d ed.), 133. 82 29 Car. II, chap. 3; i R. L. 75, 8*2 R. S. 113, § i. § 11; see revisers' note 36, Ap- 85 See above, p. 502, under § 112, pendix II, infra. and Ferrin v. Myrick, 43 N. Y. at 83 Chap. 44, Laws of 1787; 2 J. & p. 323. V. 44; I K. & R. 72, § II ; I R. L. 75, 5o6 The Decedent Estate Law. § 113 of another unless the same were in writing.*" But there was a reason for the special exemption of executors. In the reign of Charles II the obvious legal tendency was to follow the Roman law, and to identify the executor with the deceased as eadem persona, and not to treat the executor as a different person in law.*' The jural fiction of " eadem persona " was no doubt then a very convenient one for many purposes, especially in the law of procedure on contracts made by the deceased in person. At the present day when a contract is made by the testator in his lifetime, an action lies against the exec- utor, but only as such executor, and the judgment is then de bonis testatoris.^^ Even at the present day, an executor or administrator is liable individually on contracts made by him after the death of testator, and then the judgment is de bonis propriis.^^ But these familar distinctions were not so clearly established when the Statute of Frauds was first enacted as they are at present. The legal ten- dency then was, as stated above, to identify the executor in law with the testator and to regard him as eadem persona as his testator. In any event a very slight ground then sufficed to charge the executor or administrator personally, and the liability need not be founded on a writing."" It was doubtless some legal tendency to identify the executor with the testator which prompted the insertion of the first subdivision of the 4th section of the Statute of Frauds, intended to relieve exec- utors from a constructive personal liability to creditors of their tes- tator, unless the promise was in writing.''^ Mr. Throop discusses the reason for this particular subdivision in his very excellent observa- tions on the Statutes of Frauds, but he seems puzzled and to over- look the one here suggested as the probable reason for this distinct provision of the statute,*^ and yet it seems the only obvious reason, 86 29 Car. II, chap. 3, § 4, subd. 2, Austin v. Munro, 47 id. 360; Willis now § 31, Pers. Prop. Law of 1909, v. Sharp, 113 id. 586, 591; Parker v. subd. 2. Day, 155 id. 383; O'Brien v. Jack- s' See Ferrin v. Myrick, 41 N. Y. son, 167 id. 31. 33- at p. 323, and cases there cited. sopgi-j-jn y Myrick, 41 N. Y. at 88 Ferrin v. Myrick, 41 N. Y. 315, p. 323. 322; § 116, Decedent Estate Law. 'i See the Statute, Fowler's Pers. 89 Howard v. Heierschit, 16 Hun, . Prop. Law (2d ed.), p. 297. 177; Ferrin v. Myrick, 41 N. Y. 315, '^ "phroop on Verbal Agreements, 322; Levin v. Russell, 42 id. 251; §§ 12, 13. §113 Statute of Frauds. • 507 if we have reference to the development of the law regulating executors. When the executor's agreement or promise is now in writing un- der the Statute, some consideration is still necessary to support it."" Prior to the independence of New York the executor was held per- sonally liable on such promise, or undertaking, whenever at the time' of the executor's promise he had assets ; for then there was a suf- ficient consideration, and assumpsit lay against the executor person- ally and the judgment against him was personal or de bonis propriis.^* But it was otherwise if at the time of such promise he had no assets."" Some persons, however, maintained that a mere forbearance to sue on the part of the creditor furnished a sufficient consideration to support the promise of the executor."^ Mr. Throop discusses this obscure question of the consideration .moving to the executor only indirectly, but with reference to more modern cases, and his treatise should be consulted on this point by the New York lawyer."" A promise or agreement of an executor may, however, still be an original promise and without this section of the statute, and in that case it is directly enforceable against him personally, al- though not in writing."' This section in terms relates only to debts of the decedent, and not to those of the executors or administrators as such. An executor can not, however, by his promise or act revive a debt against the estate of his testator which is barred by the Statute of Limitations."" "' See Fowler's Pars. Prop. Law "' Hall v. Richardson, 22 Hun, (2d ed.), IS4, IS5; Ram on Assets, 444; O'Brien v. Jackson, 167 N. Y. S04 ; Williams on Executors (2d ed.), 31; and see Fowler's Pers. Prop. 1262. Law (2d ed.), IS3-IS7- 92 R. S. 114, § 4. N. Y. at p. 334; Rockwell v. Saun- 61 § 118, Decedent Estate Law. ders, 19 Barb. 473, 481; Broom's 62 Snider v. Croy, 2 Johns. 227; Legal Maxims (Lond. ed. 1848), Hegerich v. Keddie, 99 N. Y. 258, 707. 260. 65 2 Cai. Cas. in Error, 200. 63 See revisers' note 39, Appendix 520 The Decedent ■ Estate Law. § i iS erty of their predecessors in title."" The Court of Appeals in Zabris- kie V. Smith seem to think that the revisers of the Revised Statutes, in re-enacting this section, proceeded on this assumption, and that this section was re-enacted in view of the common law forbidding such actions and to enable such actions to be brought."' This particular section enables actions in favor of executors and administrators against certain tort feasors. The next section enlarges such remedy so as to em.brace actions against the executors or administrators of such tort feasors. In addition to section ii8 of this act there is, however, .now another and more general section of the statute enabling executors and administrators to maintain actions for injuries to the property of a deceased person."* 2 R. S. 447, § i, seems to have been, original with the Revised Statutes, and inserted by way of amplifi- cation of enabling rights rather than for the sake of orderly repe- tition."" 66 Moore v. McKinstry, 37 Hun, 68 2 R. S. 447, § i, now § 120, De- 194. 197; Broom's Legal Maxims cedent Estate Law; see Smith v. (ed. 1848), 706; Rockwell v. Saun- N. Y. & New Haven R. R. Co., 2& ders, 19 Barb. 473; Rutherford v. Barb. 60s, 607. Aiken, 3 T. & C. 60; Hegerich v. ^^Now § 120, Decedent Estate Keddie, 99 N. Y. 258. I aw. 6' 13 N. Y. at p. 334- §119 Actions OF Trespass Against Executors, Etc. 521 § 119. Actions of trespass against executors and admin- istrators. Any person, or his personal representatives, shall have actions of trespass against the executor or admin- istrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taij 119 Actions OF Trespass Against Executors, Etc. 523 real property.'^ Where the plaintifiE in trespass dies before entry of judgment, his executors or administrators are limited to the damages incurred at the time when action was brought.** " Gould V. Patterson, 87 Hun, 533, ss Mitchell v. Village of White 537; Heinmiller v. Gray, 44 How. Plains, 91 Hun, 189. Pr. 260, 13 Abb. Pr. N. S. 299, 35 Sup. Ct. (J. & S.) 196; Rutherford V. Aiken, 3 T. & C. 60, 62. S24 The Decedent Estate Law. § 120 § 120. Actions for wrongs, by or against executors and ad- ministrators. For wrongs done to the property, rights or interests of another, for which an action might be main- tained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators against, such wrong-doer, and after his death against his executors or administrators, in the same manner and with the hke effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty- three hundred and forty-three of the code of civil procedure ; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death. Added by chapter 240, Laws of 1909. Formerly 2 R. S. 447, § i and 2 R. S. 448, § 2. § I. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts.^' 5 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the per- son of the testator or intestate of any executor or administrator.*^ Comment. Section 120 of the present Decedent Estate Law is the result of an amendment"" to the original " Decedent Estate Law of 1909." "^ It was then found that part of the Revised Stat- utes which ought to have been inserted in the original draft of the Decedent Estate Law had been omitted, and such omission was ac- cordingly corrected by an amendment to the law as first passed. The above sections, thus taken out of the Revised IStatutes, had been 89 Repealed by chap. 240, § 93, so Chap. 240, § 16, Laws of 1909, in Laws of 1909, amending § 130, De- effect April 22, 1909. cedent Estate Law. '^ Chap. 18, Laws of 1909. § 120 Actions by or Against Executors, Etc. 525 part of the original draft of the Revised Statutes^^ and were con- tained in art. i, chapter VIII of part III of that revision, which related to " Suits by and against executors and administrators." Similar provisions were enacted by earlier parts of the Revised Statutes relating " to the rights and liabilities of executors." °^ Section 120 is generally treated as an independent enabling act. If cumulative, then this section must serve either to emphasize, or repeat the remedy given by the two preceding sections of this act.'* The original revisers' official notes throw no light on the construction of this section, as they favored the Legislature with no special explana- tion on the originals of this section. John C. Spencer, one of the revisers, however, published some comments on the Revised Statutes in the " Ontario Messenger " for 1830, in the course of which he said of these sections : "Actions for wrongs to the property, right or interest of another, °° may be brought by executors, &c., against the wrongdoer, or against his administrators, &c., in the same manner as suits upon contracts: except actions for libel, slander, assault and battery, false imprisonment and for injuries to the person." Judge Spencer's note is unfortunately only a repetition of the statute, and not an explanation of its import. It throws little light on the con- struction of this section. If not cumulative this section is an inde- pendent enabling act, and it is generally so regarded. Actions which Survive Under this Section in Favor of, or Against, a Deceased Person's Representatives. Whether cumula- tive or enabling, whether standing alone or to be read in conjunction with sections 118, 119 of this act, this section has been construed to support a variety of rights of actions in which damages are recov- «red, but which actions did not survive or were not formerly per- missible by the the common law, after the death of the person injured or the death of tort feasor."" This section has now been held to sanction or to revive actions for damages, based on the fraudulent «2 2 R. S. 447, 448, i§ I, 2. '*§§ 114. IIS. Decedent Estate 93 2 R. S. 114, § 4, now § 118, De- Law; Smith v. New York & New cedent Estate Law; 2 R. S. 114, § 5, Haven R. R. Co., 28 Barb. 605, 607. now § 119, Decedent Estate Law; ^^2 R. S. 447, 448, §§ i, 2. Hopkins v. Adams, 5 Abb. Pr. 351, ^^ See supra, pp. 508, 514; aTid 356. Miller v. Young, 90 Hun, 132, 133. 520 The Decedent Estate Law. § 120 representations of a testator as to incumbrances on land;"' to revive actions for damages through a conspiracy to defraud,"' or for injuries done to the property, right or interest of another by means of a wrong or a fraud."". But such wrongs or frauds must still affect the property rights of plaintiff in some way in order to survive the death of the injured or that of the tort-feasor.^ But after a judgment ex delicto the judgment itself is ex contractu, and, afe it will support an assumpsit, it held to survive as against the judgment debtor's representative.- Actions for a mere penalty imposed by a statute for nonfeasance do not however survive under this section.^ Under the Revised Statutes it was said that whatever cause of action was assignable survived,* but since the Code of Civil Pro- cedure it is thought that this sole test no longer holds good in all cases under the various statutes separately regulating the assignability and the survival of causes of actions. Each statute is self-regarding.^ Survival in this connection refers only to natural death of a party and not to his civil death, or to a mere dissolution of a corporation.* This section by its terms is to be read in connection with subdi- vision nine of section 3343 Code of Civil Procedure.'' "Haight v. Hayt, 19 N. Y. 464; 617; Matter of Meekin v. B. H. Wickham v. Roberts, 112 App. Div. R. R. Co., 164 id. 145. 742. 3 Stokes V. Stickney, 96 N. Y. 323 ; 98 Lyon V. Park, iii N. Y. 350, Brackett v. Griswold, 103 id. 425. 3SS ; Hadcock v. Osmer, 4 App. Div. Cf. O'Brien v. Blaut, 17 App. Div. 43S. 288. 99 Bond v. Smith, 4 Hun, 48; *Byxbie v. Wood, 24 N. Y. 607, Byxbie v. Wood, 24 N. Y. 607, 612; 612; Blake v. Griswold, 104 id. 613, Union Bank v. Mott, 27 N. Y. 633, 616; Rutherford v. Aiken, 3 T. & C. 636. 60, 63 ; Graves v. Spier, 58 Barb. 349, I Cregin v. Brooklyn Crosstown 384 ; Murray v. Fay, 38 id. 14, 20. Railroad Co., 75 N. Y. 192; Scott v. ^Keeler v. Dunham, 114 App. Div. Brown, 24 Hun, 620; Stokes v. Stick- 94, 98; Blake v. Griswold, 104 N. Y. ney, 96 N. Y. 323; Brackett v. Gris- 613, 616; Fowler's Pers. Prop. Law- wold, 104 id. 613; Hegerich v. Ked- (2d ed.), 211. die, 99 id. 258, 264; Bennett v. Ben- 6 Shayne v. Evening Post Publish- nett, 116 id. 584, 588; Seventeenth ing Co., 168 N. Y. 70. Cf. D. G. Ward Bank v. Webster, 67 App. Div. Yuengling Brewing Co., 24 App. 228; Gordon v. Strong, 158 N. Y. Div. 223; Matter of Murray Hill 407. Bank, 153 N. Y. 199; People v. Troy 2Carr v. Rischer, 119 N. Y. 117, Steel & Iron Co., 82 Hun, 303. 124; Blake v. Griswold, 104 id. 613, 'Formerly 2 R. S. 448, § 2. § I20 Actions by or Against Executors, Etc. 527 What Actions Do Not Survive. Under this section actions for libel, slander, criminal conversation, seduction, malicious prose- cutions, or assault and battery do not survive the death of either the injured or the injurer; nor do actions for false imprisonment, or " other actionable injury to the person " only, survive.* The inten- tion was that the causes of action specially expected in this section should not survive, but that all other causes of action should survive.^ Formerly an action of replevin abated on the death of plaintiffs* and it did not survive against the executors or administrators of a defendant.^* But a recent statute covers the remedy, and by it such action now survives the death of either plaintiff or the wrongdoer.^^ ^ § 3343, Code Civ. Pro., subd. 9 ; " Burkle v. Luce, i N. Y. 163. Pulver V. Harris, 52 N. Y. ■jz, 75; Cj. Porter v. Van Vranken, 36 N. Price V. Price, 75 id. 244; Larocque Y. 619, 625; Lahey v. Brady, i Daly, V. Conheim, 42 Misc. 613; Duncan 443. V. St. Luke's Hospital, 113 App. "Hopkins v. Adams, S Abb. Pr. Div. 68, 75. 351; Mosely v. Mosely, il Abb. Pr. 'Haight V. Hayt, 19 N. Y. 464, 105; Webber's Exrs. v. Underbill, 467 ; Cregin v. Brooklyn , Construe- 19 Wend. 447 ; Lahey v. Brady, I tion Railroad Co., 75 N. Y. 192, 194, Daly, 443, 445- 195. Cf. Stokes V. Stickney, 96 "§ 1736, Code Civ. Pro.; Burn- N. Y. 323, 327; Hegerich v. Keddie, ham v. Brennen, 60 How. Pr. 310;. g^ N. Y. 258, 262. Roberts v. Marsen, 23 Hun, 486. 528 The Decedent Estate Law, § 121 § 121. Action or proceeding by executor of executor. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor. [Added by § 16, chap. 240, Laws of 1909 amending the Decedent Estate Law.] Formerly 2 R. S. 448, § 11 : § II. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof as such executor.13 Comment. Prior to the Revised Staitutes, although an exec- utor could not assign the executorship, yet the executor of a sole executor (who had proved the will) was to all intents and purposes the executor and representative of the first testator.^* This rule of law was changed by the Revised Statutes,^° the provision of which continue on the statute book of this State in some form.^' The former fiction of law, that the executor was a continuation of the persona of the testator, to which we have alluded in these pages,^'' doubtless, accounts in some measure for the old rule now abolished by the Revised Statutes, as just stated above. Under the existing law an executor of an executor derives no title or authority, from the will naming him, to represent the first testator. This former rule was intended to be and is abrogated by statute.^' 13 Repealed by chap. 245, Laws of Civ. Pro. ; § 121, Decedent Estate 1909, amending § 130, Decedent Es- Law; Matter of Moehring, 154 N. tate Law. Y. 423, 429. 1* Williams on Executors, 14S, 146. ^1 Supra, p. 447. "2 R. S. 71, §§ IS, 16, 17; id. 78, 18 See note 40, Appendix II, §§ 44, 45; 2 R. S. 448, § 11; see note infra; Matter of Moehring, 154 40, Appendix II, infra. N. Y. 423, 430; Matter of Collyer, "§§ 2613, 2643, 2692, 2693, Code 124 App. Div. 16. § 122 Appraisals. 529 § 122. Appraisal of estate of deceased person. Whenever by reason of the provisions of any law of this state it shall be- come necessary to appraise in whole or in part the estate ot any deceased person, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into, consideration actual sales of neigh- boring real estate similarly situated during the year im- mediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time. This section was renumbered by § 16, chap. 240, Laws of 1909, amending the " Decedent Estate Law " of 1909. Originally it was § 120, chap. 18, Laws of 1909. Formerly chap. 34, Laws of 1891. CHAP. 34. AN ACT in reference to the appraisal of the estate of decedents and others. Approved by the Governor, February 25, 1981. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: Section I. Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the estate of any •deceased person, or of any insolvent estate in the hands of a receiver, or of any assignee for the benefit of creditors, or of any corporation in the hands of a receiver or otherwise, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated, dur- ing the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are cus- tomarily bought or sold in open markets in the city of New York or else- where, for the day on which such appraissi or report may be required, b/ 34 53° The Decedent Estate Law. § 122 ascertaining the range of the market and the average of prices are thus found, running through a reasonable period of time. § 2. This act shall take effect immediately.!' Comment. This section applies only under the circumstances therein specified. It does not apply to inactive stocks or securities which are not the subject of free and customary market dealings.^* A large but minority holding of unlisted stock should not be valued at the record figures of isolated sales of small blocks thereof in assessing an inheritance tax thereon. The value of a large block not conveying a controlling interest may be less for the purpose of sale than sporadic sales of small parcels.^^ Dividends are not con- trolling evidence of value of stock.-^ Real Estate. In assessing real estate for purposes of a trans- fer tax the best price that the devisee could obtain for it by diligent effort should control over mere expert opinion as to its value.^' Nonresidents. The stock of a nonresident testator in a con- solidated railroad corporation which is composed of corporations organized under the laws of different States is one of fact, and to be ascertained for the purposes of the transfer tax so as to avoid a. double tax if possible.-* 19 Part relating to estates of de- 230 ; Matter of Proctor, 41 Misc. T)^ ceased persons repealed by § 130, 81. Decedent Estate Law; see note 9, 21 Matter of Curtice, 11 r App, Appendix I, mjra. The words there Div. 230, affd., i8s, N. Y. S43- referred to as bracketed are (" or 22 Matter of Smith, 71 App. Div.. of any insolvent estate in the hands 602. of a receiver, or of any assignee 23 Matter of Arnold, 114 App. Div. for the benefit of creditors, or of any 244. corporation in the hands of a re- 2* Matter of Cooley, 186 N. Y. 220 j ceiver or otherwise."). Matter of Thayer, 193 id. 430, 20 Matter of Curtice, iii App. Div. § 130 Laws Repealed. 531 ARTICLE 5 Laws Repealed; When to Take Effect Section 130. Laws repealed. 131. When to take effect. § 130. Laws Repealed. Of the laws enumerated in the sched- ule hereto annexed, that portion specified in the last column is hereby repealed. § 131. When to take effect. This chapter shall take effect immediately. Schedule of Laws Repealed. Revised Statutes Part 2, chapter 6, title i, §§ 1-5, 21, 22, 40-53. 69-71- Revised Statutes Part 2. chapter 6, title 4, §§ 55, 58. Revised Statutes Part 2, chapter 6, title 5, §§ 1-6, 23. Revised Statutes Part 3, chapter 7, title 3, §§ 67-70. Revised Statutes Part 3, chapter 8, title 3, §§ i, 2, 11.^ Revised Statutes Part 3, chapter 8, tide 3, §§ 17, 18. Laws of Chapter Section 1787 47 All. 1799 75 All. ]8oi 9 All. R. L. 1813... 23 All. R.L. 1813... 75 All. 1815 157 All. 1821 207 All. 1828 21 I, 1111 83,9s, 196,336,544 (2d meet). 1828 313 All. 1829 148 All. 1835 264 All. 1837 234 All. 1840 348 I 1 Inserted and expressly repealed by § 93, chap. 240, Lav/s of 1909, in effect April 22, 1909. 532 The Decedent Estate Law. § 131 Laws of Chapter Section 1848 319 Proviso in § 6. i860 360 All. 1865 368 Proviso in § 6. 1867 ;82 3, 4. 1869 22 All. 1873 397 Proviso in § 5. 1875 267 Proviso in § 7. 1875 343 Proviso in § 5. 1876 118 All. 1883 65 All. 1886 236 Proviso in § 7. 1887 315 Proviso in § 5. 1887 317 Proviso in § 7. 1890 '. 286 Proviso in § 6. 1891 34 I. pt- relating to estates of deceased persons. 1904 X06 AII.2 1896 547 280-296. 1897 417 9, pt. relating to executors, adminis- trators and other trustees of estates of deceased persons. 1902 295 I, pt. amending L. 1897, ch. 417, § 9, as to executors, administrators and other trustees of estates of de- ceased persons. 1903 623 Pt. amending the proviso in L. 1848, ch. 319, § 6. 1904 106 All.^ 1907 669 I, pt. amending L. 1897, ch. 417, § 9, as to executors, administrators and other trustees of estates of de- ceased persons. Code Civil Procedure, §§ 1843, 1859, 1868, 261 1, 2628, 2633; § 2634, to and including words " in his office " ; § 2660, words " If a surviving husband " to " creditors of the husband " ; §§ 2694, 2703, 2704, 2732 ; § 2733, except last two sentences ; § 2734. 2 Amended and repealed by § 106, chap. 240, Laws of 1909. Appendix No. I. NOTES OF THE BOARD OF STATUTORY CONSOLIDATION ON THE DECEDENT ESTATE LAW CHAPTER 13, CONSOLIDATED LAWS (Enacted by Chapter 18, Laws of 1909.) [533] DECEDENT ESTATE LAW CONSOLIDATORS' NOTES TO TEXT 1. Upon examining the revised statutes it was found that there were certain provisions relating to wills that had never been consolidated in any " General Law." They could not be assigned appropriately to any of the present general laws. They were substantive in character and there was an obvious objection to inserting them in the code which was already over- burdened with provisions of a substantive nature. Some new " Consolidated Law " was therefore necessary. A " Wills Law " had been suggested, but this term, while adequate for the matter coming from the revised statutes was not broad enough to cover substantive provisions of a related char- acter that should be removed from the code. The term "Decedent Estate Law " was selected therefore both as suggestive of the contents of the new law and general enough in its terms to include matter relating to wills as well as executors and administrators and kindred topics of a substantive character here assembled. Throughout this chapter references in sections have been changed where necessary to preserve the original application of the sections as they existed in the Revised Statutes, the Code of Civil Procedure or in other statutes. The reason for every such change is seen at a glance and hence a separate note is not made in each instance. 2. § 2. Substantially the same definition of the word " will " is given in the Code of Civil Procedure, § 2514, subd. 4, but, that is only for the purpose of construing the provisions of the code. 3. Art. 2. Most of the provisions of this article come from the Revised Statutes with such provisions from the code as were found applicable. So far as possible the language of the Revised Statutes has been followed in incorporating its provisions in the Decedent Estate Law, so that the force of decisions of the courts upon any provision abstracted from the Revised Statutes might not be impaired. In some cases more apt language might be suggested, but for the reasons stated, no improvement in expression has been attempted. These remarks are also applicable to sections taken from the Code of Civil Procedure and inserted in this chapter. 4. §§ 18-20. These sections relate to the limitation on the power of persons to make devises or bequests to corporations created under certain acts heretofore passed. While under these acts no new corporations can be formed in the future the limitations should be noted as affecting gifts [535] 536 CONSOLIDATORS' NOTES. to corporations already existing. So far as these acts place a limitation upon the amount of property which can be taken by devise or bequest, they have been inserted in the Membership Corporations Law, as the portions so assigned relate solely to the powers of the corporations as distinguished from the power of persons making the will. 5. Art. 3. This article embraces Article 9 of the Real Property Law, known as the " Statute of Descents " and sections 2732-2734 of the Code of Civil Procedure, known as the " Statute of Distribution." 6. §§ 95, 97 and 99. These sections relating to advancements of real and personal estates are in pari materia and must be read together. See 79 N. Y. 246. The provisions of all three sections were taken from the Revised Statutes and inserted in the Real Property Law and the Code of Civil Procedure in former revisions of the statutes. Section 99 is by its terms inapplicable in a case where there is any real property of the intes- tate to descend to his heirs. 7. Art. 4. There are many matters of a more or less substantive char- acter relating to executors and administrators, trustees and appraisers in the Code of Civil Procedure which might have been inserted under this article. It has been deemed best, however, to leave these matters in the Code of Civil Procedure until such time as the Code shall be revised. When that time arrives these provisions can be readily assigned to this article. 8. § III. This provision is found in section 9 of the Personal Property Law and for greater convenience in reference has been transferred to the Decedent Estate Law. The reference to guardians has been transferred to Domestic Relations Law. The portion of the section relating to trustees generally has been allowed to remain in the Personal Property Law. 9. § 122. The bracketed portion of this section, relating to the ap- praisal of insolvent estates and of property of corporations in the hands of receivers, has been incorporated in the Debtor and Creditor Law and the General Corporation Law. CONSOLIDATORS' NOTES TO SCHEDULE OF REPEALS When a statute has been specifically repealed, that statute and the repeal- ing statute are given without any explanatory note. 29. R. S., Ft. 2, Ch. 6, Tit. i, §§ 1-5, 21, 22, 40-53, 69-71. Sections i, 21 and 49 were amended " to read as follows " by later acts. Section 69 limits application of the provisions relating to revocation, to wills made by testators living one year after chapter takes effect. Obsolete. Section 70 provides that title i shall not be construed to affect the validity of execu- tion of wills made before the chapter takes effect. Obsolete. The other sections have been consolidated in the Decedent Estate Law as follows: Sections 3-S in §§ 11-14; section 22 in § 16; sections 40, 41 in §§ 21, 22; sections 42-48 in §§ 34-4°; sections So and Si in § 27; section 52 in § 29; section 53 in § 41, and section 71 in § 2. Appendix I. 537 30. R. S., Pt. 2, Ch. 6, Tit. 4, §§ 55, 58. Section 55 relates to failure of executor to qualify and is covered by Code Civil Procedure, § 2642; section 58 provides penalty for an executor making illegal sales, and is obsolete. 31. R. S., Pt. 2, Ch. 6, Tit. 5, §§ 1-6. Consolidated in Decedent Estate Law as follows: Section i in § 113; section 2 in § 116; section 3 in § 117; section 4 in § 118; section 5 in § up; section 6 in § 114. 32. R. S., Pt. 3, Ch. 7, Tit. 3, Art. 7, §§ 67-70. Consolidated in Decedent Estate Law, §§ 30-33- 33. R. S., Pt. 3, Ch. 8, Tit. 3, Art. i, §§ 17, 18. Consolidated in Decedent Estate Law, §§ 112, 115. 34. L. 1787, Ch. 47. To reduce the laws concerning wills into one statute. L. 1801, Ch. 193 repeals all statutes which come within the pur- view of the Revised Acts. Statute cited comes within the purview of R. A., Ch. 9. 35. L. 1799, Ch. 75. Relates to public administrator in city of New York. L. 1801, Ch. 193 repeals all statutes coming within the purview of the Revised Acts. Statute cited comes within the purview of R. A., Ch. •;•]. 36. L. 1801, Ch. 9. To reduce the laws concerning wills into one statute. L. 1813, Ch. 202 repeals all statutes which come within the pur- view of the Revised Laws. Statute cited comes within the purview of R. L., Ch. 23. 37. As the statutes covered by express repealing acts have been repealed by the Consolidated Laws the repealing statutes have been recom- mended for repeal. 38. L. 1835, Ch. 264, § 1, Is superseded by L. 1883, Ch. 65, § i. 39. The following statutes have been amended so as to read as follows and are superseded and repealed by the amending statute: R. S., Pt. 2, Ch. 6, Title i, §§ i, 21, 49; L. 1847, Ch. 80, § i; 1848, Ch. 319, § 6; 1897, Ch. 417, § 9; where the foregoing statutes have been repealed by being amended " so as to read as follows," except the section " This act shall take effect immediately," this section is included in the word " all " under the heading '" Statutes hereby repealed." 40. L. i860, Ch, 360 Section i is consolidated as section 17 of Decedent Estate Law, § 18; section 2 is a repealing section. 41. L. 1865, Ch. 368, proviso in § 6. Consolidated in Decedent Estate Law, § 18. 42. L. 1867, Ch. 782, §§ 3, 4. Consolidated in Decedent Estate Law, §§ ID, 15. 43. L. i86g, Ch. 22, § i. Consolidated in Decedent Estate Law, § 26. 44. L. 1873, Ch. 397, proviso in § 5. Consolidated in Decedent Estate Law, § 20. 45. L. 1875, Ch. 267, proviso in § 7. Consolidated in Decedent Estate Law, § 18. 538 CONSOLIDATORS' NOTES. 46. L. 1875, Ch. 343, proviso in § 5. Consolidated in Decedent Estate Law, § 18. 47. L. 1883, Ch. 65. Section I is consolidated in Decedent Esate Law, § no; balance of act obsolete. 48. L. 1886, Ch. 236, proviso in § 7. Consolidated Decedent Estate Law, § 18. 49. L. 1887, Ch. 315, proviso in § 5. Consolidated in Decedent Estate Law, § 20. 50. L. 1887, Ch. 317, proviso in § 7. Consolidated in Decedent Estate Law, § 20. Soa. L. 1890, Ch. 286, proviso in § 6. Consolidated in Decedent Estate Law, § 20. 51. L. 1891, Ch. 34, § I, so far as relates to estates of deceased persons. See note 9, ante. Consolidated in Decedent Estate Law, § 122. 52. L. 1893, Ch. 100. Amends L. 1847, Ch. 80, § i, " so as to read as follows." L. 1847, Ch. 80 was repealed by L. 1893, Ch. 686. The amend- atory act was not expressly repealed but is superseded by Code of Civil Procedure, § 2719, as amended by L. 1893, Ch. 686. 53. L. 1896, Ch. 547, §§ 280-296. See note S, ante. Consolidated in Decedent Estate Law, §§ 80-97. 54. L. 1902, Ch. 29s, § I, so far as relates to executors, administrators and other trustees of estates of deceased persons. Consolidated in Decedent Estate Law, § in. 55. L. 1903, Ch. 623, so far as amends the proviso in L. 1848, Ch. 319, § 6. Consolidated in Decedent Estate Law, § 19. 56. Code of Civil Procedure, § 1843. Consolidated in Decedent Estate Law, § ici. 57. Code of Civil Procedure, § 1859. Consolidated in Decedent Estate Law, § 102. 58. Code Civil Procedure, § 1868. Consolidated in Decedent Estate Law, § 28. 59. Code of Civil Procedure, § 261 1. Consolidated in Decedent Estate Law, §§ 23-25. 60. Code Civil Procedure, § 2628. Consolidated in Decedent Estate Law, § 46. 61. Code Civil Procedure, § 2633. Consolidated in Decedent Estate Law, § 42. 62. Code Civil Procedure, § 2634, to and including words " in his office." Consolidated in Decedent Estate Law, § 43. 63. Code Civil Procedure, § 2660. From " If a surviving husband " to " creditors of the husband." Consolidated in Decedent Estate Law, § 103. 64. Code Civil Procedure, § 2694. Consolidated in Decedent Estate Law, § 47. Appendix I. 539 65. Code Civil Procedure, § 2703. Consolidated in Decedent Estate Law, § 44. 66. Code Civil Procedure, § 2704. Consolidated in Decedent Estate Law, § 4S. 67. Code Civil Procedure, § 2732. Consolidated in Decedent Estate Law, § 98. 68. Code Civil Procedure, § 2733, except last two sentences. Con- solidated in Decedent Estate Law, § 99. 69. Code Civil Procedure, § 2734. Consolidated in Decedent Estate Law, § 1 00.1 1 The above notes state the sec- to which they refer, and no more tions of the Decedent Estate Law particular reference is necessary. Appendix II. NOTES ORIGINAL REVISERS OF THE REVISED STATUTES Originals of the Sections Now Incorporated in the Decedent Estate Law Chapter 13, Consolidated Laws, Enacted by Chapter 18, Laws of 1909. [541] NOTES OF THE ORIGINAL REVISERS OF THE REVISED STATUTES Original Preliminary Note of Revisers with Chapter VI, Part II, R. S. (2 R. S. 56). "Of Wills and Testaments; of the distribution of the Estates of Intestates; and of the rights, powers and duties of executors and administrators." 1 " The following chapter will be found to contain new provisions of a greater number, extent and importance, than any that has been presented to the legislature. From all quarters of the state, the Revisers have heard complaints of the defects of the existing law, upon the subject of wills and executors and administrators, and numerous amendments have been suggested to them. They have bestowed their Utmost attention, and have exerted all the faculties they possess, in an effort to reduce this branch of law into some other, to condense the floating practice and decisions, to settle the most vexed and perplexing questions, and to present to every man who is called upon to act as an executor or administrator, a plain and practical guide for his conduct. The labor it has cost will have been well bestowed, if so much only is accomplished, as to inform the officer intrusted with the delicate and responsible powers of a surrogate, of the extent of his authority, and the means of enforcing it. " It is a singular circumstance, that while on every other subject of legislation this state has kept pace with the other states of the Union, and on most subjects have surpassed them in improvements on the English law, yet upon this topic we are behind almost every other state. So early as 1798, an excellent system was adopted in the state of Maryland, altogether superior to any then in existence. Massachusetts, the New England States generally, and Virginia, have at different times revised their statutes on the subject of wills and the administration of estates, and have inserted provisions adapted to the wants and situation of our country. "In this state we have contented ourselves with re-enacting the British statutes, with few and slight alterations; and we have piled up the various and discordant acts of the English Parliament, without any attempt to reconcile them, to remove their ambiguities, or to remedy their defects. The law and practice of the ecclesiastical courts in England, before which the statutes on this subject come under consideration, have, until a very 1 Refers to chap. VI, 2 R. S. 56, now incorporated in article II, De- cedent Estate Law. [543] 544 Revisers' Notes. recent period, been hidden mysteries ; and our own courts have been called upon to expound the statutes borrowed from England, with but little aid from the decisions in that country. " We have felt that a more useful and acceptable service could not be performed, than to adapt the written law to the actual existing law; where that was settled, to express it in intelligible language and to incorporate provisions which would terminate the uncertainty that now prevails over a large part of the subject. The prominent objects of the chapter are these : " I. To prescribe distinctly the mode of executing wills of personal as well as real estate, to declare their construction and effect, and to define the cases in which implied revocations take place. A reference to the notes to Title I., will fully explain the views of the Revisers on these points. " 2. To secure responsibility in executors and administrators, and vigilance in the discharge of their duties. For this purpose means are provided to ascertain their qualifications ; and in the event of their being or becoming incompetent, to have others appointed in their places. "3. To afford creditors full information of all the proceedings of executors, etc., and an opportunity of investigating them. "4. To protect administrators, etc., in the honest discharge of their duties, to point out those duties explicitly, and to enable them to have a settlement of their accounts without resort to a court of chancery. In every other state whose laws we have consulted, provisions are found for the settlement of these accounts. In this state only, so far as we can discover, are administrators, etc., left exposed to prosecution for an indefi- nite length of time. This is the more remarkable, as under our colonial government a practice prevailed of granting a quietus to an executor, by the judge of the court of probate, upon a settlement of accounts. In thus restoring the ancient practice, we have proposed the introduction of guards and restrictions, which will equally protect creditors. "5. The greatest object, however, has been, to effect the settlement of the estates of deceased persons, as speedily as possible, and to cause a distribution to be made. Various provisions are inserted for this purpose. One is, to make it the interest of creditors to present their demands and have them ascertained, without suit. Another is, to compel an account by the administrator, etc., at the instance of creditors and relatives. A third is, to prohibit an executor of an executor from administering as such on the estate of the first testator, but to compel him to take out letters of administration and give bonds. "6. To provide means for the payment of legacies and the shares of the next of kin, by executors, etc., without' making themselves personally responsible. "7- In relation to the sale of real estate, to guard against the great abuses which are known to exist, by defining clearly the cases in which a sale may be made ; by prescribing the prerequisites, minutely ; by requiring Appendix II. 545 ample notice to all interested; by providing meins for ascertaining debts; by insuring responsibility for the proceeds, and by protecting heirs and devisees from the consequences of a sale. "8. Cases have occurred to point out the necessity of having a public officer in each county, to take charge of the assets of strangers. The act concerning the public administrator in New York, has therefore been extended and applied to other counties. It is believed it will be useful in securing property for the benefit of distant heirs, or of the state, if no claimant appears, from the grasp of those who may volunteer tp take charge of it." Original Particular Notes of the Revisers, i. The first and fifth sections of the act concerning wills (i R. L. 364) enlarged, so as to com- prehend every species of real property, and terminate the disputes that constantly arise on the construction of the present statute. It is now a matter of serious doubt, and the question is pending in our highest court, whether all interests which descend to heirs, can be devised. This doubt is intended to be removed so far as future wills are concerned, by this section.2 2. " Intended to reconci',e the first section of the acts concerning wills (i R. L. 364) with the provisions concerning religious corporations (2 R. L. 214) and with various special acts authorizing corporations to take by devise. It has been put into the form of a positive prohibition, with the view of calling the attention of the legislature to it, that it may be retained if it is intended to be prohibitory, or may be expunged if it is deemed un- necessary. It is a question now agitated in our courts, whether it is to be considered as a prohibition or not.' 3. " Under the statute as it is now construed, a devise of lands to an alien is not absolutely void, but vests in him, so as to disinherit the heirs, and enable the state to recover them by escheat. Vide 6 Johns. Ch., p. 366; 12 Mass. 143. While this construction prevails a testator is deceived by the words of the statute, which do not inhibit a devise to an alien, and he is then unconsciously led to give his property to the state. To remedy this, and in conformity to the usual practice of the legislature, in renouncing the title of the state to such property, as evinced by many stat- utes allowing, aliens to retain property devised to them, this section has been drawn. Its effect will be, that if a person to whom lands are devised, be an alien at the death of the testator not competent to hold lands as against the state, they will not go to the state, but will descend to the heirs of the testator, or go to those to whom he shall have expressly devised the residue of all his estate. This is believed to be more just than the 2 Note I refers to 2 R. S. 56, 3 Note 2 refers to 2 R. S. 57, S I, and 2 R. S. S7, § 2 {supra, § 3 {supra, p. 67), now made § 12 pp. so, 61), now made §§ 10 and 11, of the Decedent Estate Law. Decedent Estate Law. 35 546 Revisers' Notes. present rule, and is precisely analogous to that which obtains in the case of lands descending to an alien.'' 4. New. Intended to guard against the questions that arise where a testator acquires property after making his will. There exists a distinction purely technical between the effect of general terms in a devise of real estate, and in a bequest of personal property. A bequest of " all a man's personal estate " passes all the property of that description owned by him at the time of his death ; while a devise of " all his lands " is confined in its operation to the lands owned by him at the time of the last publication of his will. Yet it is hardly possible to doubt that the intention of the testator was in both cases the same. This distinction, from its nature, must be un- known to the larger number of those by whom wills are executed; and must, therefore, continue to operate, as it frequently has operated, to defeat the intent of the testator. When a man after making a will of all his prop- erty acquires more, but dies without any alteration of his will, unless he be a well-instructed lawyer, it may safely be affirmed, that his belief and expectation were, that all his property would pass, without reference to the time when it was acquired. Least of all, would he probably imagine that a different rule would prevail in disposing of the two kinds. This distinc- tion, wholly arbitrary, and which has no foundation in reason, the revisers propose to abrogate; and thus attain the will of the testator, and produce a uniformity in the law.^ 5. Same as presented by the revisers (2 R. S. 60, § 21) except that the Legislature altered the words " fourteen " to " eighteen " in the case of males and " twelve " to " sixteen " in the case of females and inserted the words " and no others."* Original note of revisers. "The sixteenth section of the present act (2 R. L. 367) declares, that persons may " bequeath their personal property by will in writing, in the same manner as if this act had not been passed." It seems to have been much controverted, what persons may bequeath, and in what manner, at common law. Vide 2 Black. Comm. 496; Toller, p. 23; Coke Litt. 896; Hargrave's note (six) thereon. In drawing the above section an effort has been made to condense the common law as it seems to be understood by Justice Blackstone. The ages of twelve and fourteen seem to be too young, although the prevailing opinion is that such is the age fixed by law ; it is, .however, much controverted by Mr. Hargrave in the note above referred to, and seems to require legislative provision.' 6. Sections (* * *) related to nuncupative wills, and conformed with some new guards and restrictions to the 14th, isth and 17th sections of the *Note 3 refers to 2 R. S. 57, § 4- « Judge Edmund's note. (supra, p. 71), now made § 13, 'Note 5 refers to 2 R. S. 60, § 21 Decedent Estate Law. (supra, p. 78), now made § 15, ^ Note 4 refers to 2 R. S. 57, § 5 Decedent Estate Law. (supra, p. 76), now made § 14, Decedent Estate Law. Appendix II. 547 act of 1813 (i R. L. 364) and to 20 Johns.; but the Legislature substituted in lieu thereof (2 R. S. 60) § 32, abrogating such wills except when made by soldiers or raarinersJ* 7. The following original note of the revisers of the Revised Statutes needs a little explanation. The first intention of the revisers was to revise the Old Wills Act of this state (i R. L. 364, § 2) which we have seen in the prior pages of this treatise was substantially and indeed almost literally the old English Wills Act of Henry VIII, with the clause of the Statute of Frauds (29 Car. II) relating to the execution of devises superadded.^ With this design in view the revisers in their first draft of the Revised Statutes prepared the following section relating to wills of real estate for submis- sion to the Legislature : " § 5. No last will and testament of real estate, or of any interest therein shall be valid unless the same be in writing; be signed by the testator, or by some other person for him, and in his presence, and by his express direc- tion; and be attested by three or more credible witnesses, who shall sub- scribe their names as witnesses in the presence of the testator, and at his request." To this proposed section the revisers appended the following original note : " I R. L. 364, 2d section ; slightly varied in the hope of making it more explicit." sa The first intention of the revisers to provide separately for wills of realty was however abandoned, and in article third of tit. i, chap. VI, part II, Revised Statutes, they finally regulated the execution of both wills of realty and wills of personalty in one section, making the requisites of both alike (§ 2, R. S. 63, § 40, original edition). To section 40 the revisers appended no distinct note. But the " preliminary note " to chapter VI is suffi- ciently explanatory of their purpose.' This preliminary note was doubtless draughted subsequently to the one just before noticed and so as to serve as an introduction to chapter VI, part II, Revised Statutes, as finally com- pleted. 8. Original note. " New. Whether the birth of a child after marriage, is a revocation, seems yet a matter of doubt. Vide, 4th Johns. Ch. Rep. p. 516, etc. Some legislative declaration seems expedient, and while the con- sequences of an entire revocation are avoided by the above section, a just provision seems to be made for a probable oversight, as it is placed on the condition that the child is not mentioned or referred to in the will. It is taken substantially from the laws of Virginia, revision of 1819, vol. i, p. 376; and the same provision exists in most of the southern and south- western states, and will be found in principle in ist vol. Laws of Massa- chusetts, p. 94." 1" 'a Note 6 refers to 2 R. S. 60, § 22 (supra, p. 106), now made § 21, De- (supra, p. 84), now made § 16, De- cedent Estate Law. cedent Estate Law. ' See p. 543, supra. Appendix II. 8 Supra, pp. 84, 85. w Refers to § 26, Decedent Estate >» Note 7 refers to 2 R. S. 63, § 40 Law. 548 Revisers' Notes. 9. Original note." The revisers here refer to i R. L. 364 twelfth section of same act, p. 367. " The words in italics ' and such will can not be proved without the testimony of such witness' inserted to remedy an apparent de- fect, because the will may be proved without the legatees being a witness; and the policy of the law was merely to have the witness disinterested." 10. Original note.12 " New. Its justice is supposed apparent, as it provides for a case of mere mistake. It exists in Virginia (revised Code of 1819, I vol., p. 377, § 11), and in some of the Western states (,vide. Di- gest of Laws of Mississippi Territory, p. 433), and was suggested by the knowledge of a case where a daughter had inadvertently witnessed a will in which her portion as heir was devised to her. The present law on this subject will be seen by reference to 3 Cowen, 651." 11. Revisers' note. is it is presumed this section only requires to be read to be admitted as perfectly just. It is taken from the laws of Massa- chusetts, vol. I, p. 94, § 8; and the laws of Virginia, ist vol. revised Code, P- 376, § 5- 12. Revisers' note.i^ It is believed that the preceding sections will afford an opportunity for the safe deposit of wills, which will be embraced by many, and fraud and contention may thus be prevented. 13. Revisers' note.i5 '-yd section of same act, I R. L. 365; somewhat varied so as to guard more effectually against frauds, and to render the section conformable in its terms to the construction it has received. See 4 Cowen's Rep. 483, and the cases there cited." 14. Revisers' note.i^ " New. Marriage and the birth of issue have long been held in England to operate as a presumptive revocation of a will pre- viously made; but there has been much litigation, and there is still much uncertainty in regard to some of the qualifications of the rule. In 4 Johns. Ch. Rep. S06, Chancellor Kent applied the rule to a case before him, and discussed some of the doubtful points above alluded to. The importance of the principle itself, and the doubts that are connected with it, have induced the revisers to prepare the above section, in which they have endeavored to state the rule as now recognized by the courts, and to incorporate in it all the circumstances which, in their judgment, ought to be admitted, to repel so just and reasonable a presumption. Whether parol evidence is admissible to rebut the presumption, is doubted by Chancellor Kent in the case referred to; but its admissibility seems to be established by recent de- 11 Refers to § 27, Decedent Es- § 67, and 2 R. S. 405 §§68, 69, 70, tate Law. now §§ 30, 31, 32 and 33, Decedent 12 Refers to last part of § 27, De- Estate Law. cedent Estate Law. i' Refers to § 2 R. S. 64, % 42, IS This note refers to § 29, De- now § 34, Decedent Estate Law. cedent Estate Law. " Refers to 2 R. S. 64, § 43, now "This note refers to 2 R. S. 404, i 35, Decedent Estate Law. Appendix II. 549 cisions in England. Such evidence, in cases of this sort, must always be dangerous, and is therefore excluded by the revisers. Some legislative pro- vision on the subject seems necessary for the settlement of the law, and for general information. That the death of both wife and issue before the testator, would prevent the revocation, is settled by the English cases (2 Phillimore, 261, 266, note) ; and was doubtless one of the exceptions alluded to by Chancellor Kent, in his opinion above cited." » 15. Revisers' original note.i^ "New. It is comformable to the existing law, vide 2 Coke's Rep. 61, 2 Term Rep. 684; and is inserted from a con- viction of the revisers, that every case of implied revocation ought to be specified and defined by the Legislature, as well for general information, as to leave no room for the unnecessary exercise of discretion, by surrogate's or other courts." Judge Edmund's Note to his edition, Revised Statutes. " Partially enacted § 44, Revised Statutes, but the following clause at the end of the reported section was stricken off by the Legislature, ' so that if she die during such marriage, it shall not take effect; but if she survive her husband, such will shall be revived, and be again in force; and if not afterwards revoked, shall take effect at her death, in the same manner as if she had not been married.' " 16. Revisers' original note.i^ "New. Its utility is supposed not to require comment." 17. Revisers' original note.i' " New. Intends to guard against implied revocations by a mortgage or other incumbrance, which have been held to operate in that way in law, but not in equity; 3d Atkins 798. It is at least deemed useful to have the law uniform in all the courts ". 18. Revisers' original note to §§ 47, 48 and 49.2" " Sections 47, 48 and 49, in connection with the preceding sections in this article, on the same subject, it is believed, dispose of the whole doctrine of implied revocations; and a brief exposition of the views of the revisers in proposing their enactment, seem indispensable. The object of the revisers is, to prevent a construc- tive repeal of the Statute of Wills, and to secure to testators the power of disposing of their property to the same extent in which the Legislature meant to confer it. The law respecting implied revocations, is, in its pres- ent state, a fruitful source of difficult and expensive litigation. It abounds with arbitrary rules and subtle refinements, the existence of which none but lawyers would be at all likely to suspect, and which are constantly applied, not to carry into effect, but to defeat the intention of testators. 17 Refers to 2 R. S. 64, § 44, now 20 Revisers' Note to 2 R. S. 65, § 36, Decedent Estate Law. §§ 47. 48 and 49; now §§ 39, 40 and 18 Note to 2 R. S. 64, § 45, now 41, Decedent Estate Law. § 37, Decedent Estate Law. 19 Note 2 R. S. 64, § 46, now § 38, Decedent Estate Law. 550 Revisers' Notes. That such is the acutal state of the law, has been acknowledged and lamented by the most eminent judges. Lord Mansfield has said, in the case of Swift ex dem, Neale v. Roberts, that some of the decisions on this subject, had brought 'a scandal on the law;' and on another occasion he re- marked ' that all revocations not agreeable to the intention of the testator, are founded on artificial and absurd reasoning.' 3 Burrows, 1491 ; Douglas, 722. It is an invariable rule, that any alteration made in the estate or in- terest of a testator, operates as a revocation of a previous devise; and this, nothwithstanding he retains the entire control of the property; notwith- standing the nature of the transaction afliords not the slightest ground to suppose that he meant that it should effect the disposition of his will; and even notwithstanding the declared intent of the conveyance or assurance making the alteration in his estate, was, not to defeat, but to strengthen and give effect to the provisions of his will. Thus, a conveyance to trustees, to such uses as the grantor may afterwards declare, making an alteration purely technical and formal in his title, is a revocation of a previous devise, and this although the testator dies without declaring any use of his con- veyance, and when the only probable reason for his omitting to do so, is, that he was entirely satisfied with the dispositions of his will. Thus, a settlement made to provide for a contingency that never occurred, and meant to take effect only in the event that it should occur, was permitted to defeat a devise to a person who Had paramount claims on the bounty of the testator, and for whom it was entirely certain that he meant to provide. (Lord Lincoln's case, 2 Freeman, 202; 6 Cruise, 108, Tit. Devise.) It is true, when a similar question afterwards arose (Douglass, 695); Lord Mansfield did not hesitate to declare, that 'the absurdity of the case we have referred to was shocking ; ' but he found himself compelled to add, ' however, it is now law ; ' and as far as we have been able to discover, it continues to be law even to this day. But we have not yet reached the climax. A conveyance or assurance after the publication of a will, defeats the will, although made with the avowed intent of confirming it. A man made a will, and devised certain estates to persons named therein; he after- wards, by deed, conveyed the same lands to trustees, for the use of the persons named, and for the purposes declared in his will; and it was held for a technical reason, that his will was revoked by the very act that recog- nized its existence, and was designed to establish it. (Moore's Rep. 789. See also Amb. 215, for a case still more remarkable.) "After this statement of the existing law, that some alterations are not merely desirable, but necessary, the revisers believe, will be generally ad- mitted. That the provisions suggested by them will meet all difficulties of a very complicated subject, they dare not flatter themselves ; but they affirm with confidence, that if adopted, these provisions will close many sources of expensive and protracted litigation ; and that in numerous cases, they will prevent the manifest intentions of testators from being frustrated, by the application of rules apparently revolting to common sense, and unintelli- Appendix II. ^^i gible to all not versed in the mysteries of feudal learning. The principle which has guided the revisers in the alterations which they propose, is, that where a change has occurred in the domestic relations of a testator; where new objects, having peculiar and natural claims to his bounty, have come into existence, it is a presumption justified by reason and experience, that his will is intended to be revoked; but that where no such event has occur- red, it is equally reasonable to beljeve, that a will not expressly and plainly revoked, is meant to have effect. " In conclusion, the revisers avow their conviction, that a valuable service, will be rendered the community, if those cases in which, alone, implied revo- cation may be allowed, shall be defined by legislative authority. Experience may indeed discover that the enumeration is defective, and that cases now omitted ought to be included; but should this prove to be the case, the Legislature will be competent to apply the remedy. By new enactments, they may supply the defects of the Statute of Wills, in the same manner as they are accustomed to amend and extend the provisions of other laws. To leave it to courts of justice, however learned and respectable, to declare in their discretion when implied revocations shall be admitted, is to involve the whole subject in doubt and uncertainty. It is to commit to them the power, not of interpreting, but of repealing statutes, and to invest them with an authority paramount to the will of the Legislature, and often exercised in direct opposition to the will of the testator." 19. Revisers' original note.^i "What is the precise effect of the can- celing or revocation of a subsequent, in setting up a prior, will, seems very questionable, and particularly in relation to wills of personal property. In the courts of common law, the presumption (it is said) is in favor of the revival of the former will ; but in the ecclesiastical courts (to the de- cisions of which, it is supposed by many that our surrogates are bound to conform), either an opposite presumption prevails, or the case is consid- ered to be open without prejudice to the examination of testimony. In both courts, however, the law is undisputed that parol evidence is admis- sible to ascertain the real intentions of the testator, and to determine the fact of a revival of his will, or a designed intestacy. (4 Burr. p. 2512; Cow, p. 1971 ; I Phil. Eccles. Rep. pp. 406, 446; 2 Addam's Eccles. Rep. 116.) It is this rule which the revisers propose to change in the above section, by adopting the presumption against a revival, and excluding evidence to con- tradict it. It seems to them that the admission of parol evidence in any case to ascertain the intentions of the deceased, is contrary to the whole spirit and policy of the Statute of Wills, and is calculated to let in all the mischiefs which its salutary provisions were framed to prevent. It is. true, that the rigid rule proposed by the revisers may operate in some cases to 2iRevisers's note to 2 R. S. 66, § 53, now § 41, Decedent Estate Law. 552 Revisers' Notes. defeat the intention of testators; but it is obvious that the same objection may be urged against the observance of any of the solemnities which the statute requires. The whole statute proceeds on the principle that the haz- ard, that in some cases the real intentions of the deceased may be violated, and his bounty be intercepted from the persons he designated to share it is not to be compared with the danger, that the claims of those whom the law would entitle to his estate, may be defeated by fraud and perjury, if any other than the most certain and solemn evidence of intention is permitted to be introduced. In this country especially, we should not hesitate to carry the principle of the statute (of wills) ^^ to its full extent.. We may safely lean in favor of intestacy; since it rarely happens that the dispositions of a disputed will are as just and equitable as those which, in the event of its being set aside, the law provides." The following notes of the Revisers of the Revised Statutes relate to the article on Descent.^^ " CHAPTER II." 24 " OF TITLE TO REAL PROPERTY BY DESCENT." 20. [§ I. Same as enacted, except that sub. 3 was inserted by the legis- lature.] Original note. " The term ' real estate,' is defined in the 21st section of this chapter ;25 and the above section as thus interpreted, effects an important, and, it is believed, salutary change in the present law. De- scendants, under the present statute, are confined to cases where the ancestor died seised of the estate; so that where there is an adverse possession at the time of his death, or where the right of the ancestor is contingent or executory, the inheritance, instead of descending, according to the principles of the statute, to all the heirs equally, would pass, by the rules of the com- mon law, to the eldest male heir. Thus, if the ancestor, although his title was certain, had lost the possession by force or fraud, or was entitled to the fee under a contingent remainder or executory devise, and died before the determination of the preceding estate, his whole property might pass to his eldest son, or the eldest male descendant of such son, in exclusion of all his other children. It is difficult to believe that such was the intent of the legislature by whom the statute was originally passed, but such is the 22 The words in brackets are the are now re-enacted in article 3 of the editor's. Decedent Estate Law, supra, pp. 23 Now article 3, Decedent Es- 329-530. tate Law. 25 xhe revisers here refer to i 2* The original notes to chapter R. S. 754, § 21 (which refers to i II, part II, R. S., are still very ex- R. L. 74, § 4) and probably to cases planatory of the changes wrought where cestuis had an equitable fee by the statute of New York in the old not executed by the Statute of common law of descents. The sec- Uses, tions in chapter 'II, part II, R. S., Appendix II. 553 construction which the courts are compelled to adopt, in consequence of the use of the technical term, ' seised.' The object of the revisers, is to substi- tute, throughout, the principles of the statute, for the rules of the common law; so that wherever, at common law, the eldest descendent or brother would take, all the children or brothers, &c, shall take, under the provisions of this chapter; and they are satisfied, that by making this alteration, the law will be conformed to the general sense of the community. The revisers feel it their duty to state, that the change now proposed (as well as some other valuable improvements) was suggested to them by the late Mr. Emmet, in a written communication to the revisers." 21. [§§ 2, 3, 4. Same as enacted.^s] Original note to § 4. " Residue of the 2d rule of the existing statute. It seems unnecessary to provide spec- ially for the case of a descent to grand children and children of grand children, in unequal degrees, as is done in the existing statute. The general terms here adopted, are sufficient to reach all the cases that can occur, and to the remotest degree." 22. [§ s. Same as enacted^^ and published in the first edition, except that in addition to the words in the statute, the following words were also contained in the reported section, " in which case it shall descend as if such intestate had survived his father." But by amendatory act of 1830, chap. 320, § 13, a new section was substituted on recommendation of revisers.] Original note to section as first proposed. "If in addition to those incor- porated in the text, any further alteration in the law of descents be admis- sible, it would seem that none could be more just than to allow the mother of the intestate to take the estate for her life, where there is no father. Under the present statute there is no case in which the mother would be entitled to take, an omission which is supplied in the statutes of most of the other states in the union. Should the suggestion of this note be approved, the following words may be added to the above section : ' If the intestate leave no father, the inheritance shall descend to his mother during her life, and after her death, to the persons who would have been entitled as heirs, at the time of the death of the intestate, had there been no mother.' If this clause should be adopted, some modification of the other sections will be necessary." Original note to new section proposed in 1830. " Under the sixth section of this chapter, which was introduced during its passage through the legislature, an inheritance on the part of the father may descend to the mother in fee, in exclusion of the collateral relatives of the father, and under the twelfth section, an inheritance on the part of the mother in default of collateral relatives on her side, would go to the collateral rela- tives of the father, although he himself might then be living. It seems unreasonable that the mother should possess greater privileges than the 26 Refers to i R. S. 7Si. §§ 2, 3. "Refers to i R. S. 7SI, § S, 4. pp. 364, 367, supra. supra, p. 369. 554 Revisers' Notes. father, and still more so, that a brother or sister of the father, should be entitled to take in preference to him. The amendment proposed, removes these incongruities, and renders the provisions of the statute reasonable and consistent." 23. [§§ 8, 9, R. S.28 Original note. " It has been decided by the supreme court (6 Johns. Rep. 322) and the words of the statutes seem plainly to demand that construction, that nephews or nieces, where there are no brothers or sisters, do not take equally, but only the shares of their respective parents, thus changing the rule that obtains as to lineal descend- ants, who, when of the same degree of consanguinity, always take in their own right in equal portions, and not by representation. It seems desirable that the statute should be rendered uniform in its provisions, and no reason is perceived why the rule applicable to lineal descendants, should not be extended to collaterals. This is one of the alterations effected by the three last sections; another is, that they extend the right to take by descent, to the issue of nephews and nieces. As the law now is, a grand nephew could not take at all under the statute." 24. [§ II R. S. except that after the word "descend" the words "to the mother in fee, if there be no mother then,'' were stricken out by the legis- lature, they having, by § 6, R. S. made provisions for the mother^^] Original note. " The present statute does not regulate descents beyond the children of bothers and sisters, and leaves the common law to govern in all other cases, so that the eldest uncle, and his issue take in preference to all others of equal degree. The two last sections are proposed to carry into effect the great principles of the statute throughout the nearest collateral branches, and to secure an equal distribution of the property to kindred of the same degree, and to them and their issue when of unequal degrees. The Revisers, however, doubt the expediency of carrying the rule of equal partibility beyond the limits now proposed, as the division of an estate amongst more remote relatives, on account of the multitude of shares, would render each portion so small that it would cease to be an object of any consideration. Those interested would have no adequate motive to assert their rights, and the whole estate would probably be intercepted by fraud from the heirs of the intestate. If the suggestion before made as to the mother, should be adopted, it would seem to be still more proper to provide for her, where there are no relatives of the father. In this case, therefore, the revisers propose by the words in italics, to give her the whole estate." 25. [§§ IS, 16, R. S.30] Original note to § 12. "This section adopts the principle of the present law in reference to the kindred of the half blood, and extends that principle to the new cases introduced." 28 Refers to I R. S. 752, §§ 8, 9, ' so Refers to 1 R. S. 753, §§ 15, supra, p. 386. 16, supra, pp. 404, 410. 29 Refers to i R. S. 753, § 11, supra, p. 391. Appendix II. 555 26. [18, R. S.31] Original note. " Section 5 of the present act would seem to be confined to children of the intestate; but it was taken from the English act, 10 & 11 Will. Ill, ch. 16, which declared the right of posthumous children under a marriage settlement, and ought to receive a construction equally liberal. The terms of this section are conformable to a suggestion made by the revisers in chapter VI, of the second part, in regard to the distribution of the estates of intestates, which has been adopted by the legislature." 27. [§ 28, R. S. as first enacted; 32 but by subd. 25 of § 15 of the act of the loth Dec. 1828, " Concerning the Revised Statutes," reported by the re- visers, the words, " in the life time of," originally reported and enacted, were directed to be omitted, and the word " before " substituted, and the section was so published.] Original note to § 28: To prevent doubt and avoid repetition." 28. [§ 19, R. S.33] Original note. "To avoid the repetition of the term lawful." 29. [§ 20, R. S.3*] " The estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of the pro- visions of this chapter; nor shall the same affect any limitation of any estate hy deed or will." Original note. " 4th section of present act. The saving clause in italics is new, but seems proper to be added. The general terms of the present ■law direct, that on the failure of descendants, the inheritance shall go to the collateral relatives; but it frequently happens, that where there are no issue of the intestate to take at his death, other persons are entitled under an executory devise, or other limitation. It seems full as necessary to save their rights, as the rights of tenants by the curtesy or in dower." 30. [§ 21, R. S.55 Original note. " So much of the latter part of the 4th section of the act concerning uses, I R. L., 74, as relates to this subject." 31. [§ 22, R. S.36] Original note. " This section is intended to change a very harsh rule of the existing law, by which a person not an alien him- self, may sometimes be debarred from inheriting." 32. Original note to section.^T " The i6th section of an act concerning executors, etc., p. 314, was copied nearly verbatim, from the English stat- utes of 22 and 23 Car. II, chap. 10, and i Jac. II, chap. 17, both of which are stated by Lord Hardwicke, in one of the cases above referred to 'to be very incorrectly penned.' The Revisers have conformed these parts of the 31 Refers to I R. S. 754, § 18, 35 Refers to I R. S. 754, § 21. supra, p. 412. supra, p. 330. 32 Judge Edmonds' note to i R. 36 Refers to i R. S. 754, § 22, S. 7SS, § 28, supra, p. 331. supra, p. 416. 33 Refers to i R. S. 754, § 19, " Refers to 2 R. S. 96, § 75, now supra, p. 399. § 98, Decedent Estate Law. 3< Refers to i R. S. 754, § 20, supra, p. 330. 556 Revisers' Notes. section which were most defective, to the decisions, but have made no alterations in principle. The term 'deceased,' has been substituted for ' intestate,' in order to provide for the case where there is a will which does not bequeath the estate, and omitting the part respecting advancement as being more proper for a separate section. The Revisers respectfully suggest that the following subdivision might with great propriety be added. It is found in the laws of several states. "8. If the deceased leave a wife, and no child, parent, grandchild, brothers or sisters, or a brother's or sister's child, such widow shall be entitled to the whole of the surplus. " The Revisers also suggest the following subdivision, as fixing the in- terpretation of the statute, and declaratory of the existing law, on a point which seems, from the authorities, to be involved in some doubt, viz. : the cases in which posthumous children and relatives may take under the statute. That such children and relatives may take in some cases, is settled; but the proper limitations of the rule, and who are to be considered as such, is unsettled. (See Barnardisten's Cases in Chancery, 272, and i Ves. Sen. 156.) "9. Descendants and next of kin of the deceased, in existence at the time of his death but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him. "In the laws of Maryland (Laws of 1798, chap. loi, and chap. 11 of the act), a provision will be found, that was intended for the same purpose as the above, though its terms and effect are different." 33. Original note.^s § i, i R. L. 316. As estates held in trust are descendible (§ 4, i R. L. 74 and chap, i, pt. II, R. S.), and as they may be devised (§ 21, chap. 2, pt. II, R. L. and § 2, tit. i, chap. 6, R. S.) it is conceded they will be sufficiently described by the terms used in this section." 34. Original note. 39 "No principle can be better settled at the com- mon law, than this, that the personal estate is the first and immediate fund for the payment of debts. And unless the personal estate be expressly exonerated, it must be first applied to the payment of a debt charged on land (i Cruise Dig. 73, 74, pi. 61, 64; 2 Johns. Ch. 614). And yet it has been held that the heir could not plead assets in the hands of the executor (i And., pi. 13, Dyer, 204, Fitz. Execution, 163) ; contrary to the opinion of Coke, 2 Inst., 442, and to 7 ed., 4, 13." 35. Original note." By section 60, title 2, of chapter 6, 2d part, R. S., executors de son tort, as they are called, are deprived of the right of retaining for any debt to them. The effect is to abolish the office, if it can be called such, as, in truth, he will be in no better situation than any tres- passer. It is deemed useful, however, to declare it explicitly. 38 Refers to 2 R. S. 452, now «>2 R. S. 449, § 17, now § 112, § loi. Decedent Estate Law. Decedent Estate Law. S9 2 R. S. 453, §§ 33-36; § 35 now § 102, Decedent Estate Law. Appendix II. 557 36. Original note.^i Part of nth section of Statute of Frauds, p. 78. The word " specially " substituted in lieu of the word " lawfully " as more consistent with the intent of the statute and the decisions. 37. Original note.*^ Fifth section of same act (i R. L., p. 311), ex- tended to all actions upon contract, and declaratory of the rule of law. Administrators omitted in this section, because all actions which executors may bring, are given to them in the next section.^s 38. Judge Edmunds' note.** Same as enacted, the following words being reported in italics, " and the personal property and effects of their intestate." Original note of revisers, § 4 of act concerning executors (i R. L. 311) italics (above) new, but conformable to the existing law. 39. Judge Edmunds' note.'*^ Same as enacted, except last clause of enacted section inserted by Legislature : " Executors and administrators should have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. Original note of Revisers.*^ Part of the 6th section of act concerning executors or (i R. L. 312). The words in italic (above) inserted to render the clauses of the original section consistent, and conformable to the con- struction it has received, and to the existing law. 2 Johns. Rep. 227. 40. Original note.*' This section flows from section 45, title 2, chap. 6, 2d part, R. S., which directs letters of administration to be granted on the death of an executor; but it is deemed useful to declare this explicitly. *i Refers to 2 R. S. 113, § l, now *« Refers to 2 R. S. 114, § 4, now § 113, Decedent Estate Law. § 118, Decedent Estate Law. *2 Refers to 2 R. S. 113, § 8, now *« Refers to 2 R. S. 114, § 4, now § 116, Decedent Estate Law. § 118, Decedent Estate Law. *3 2 R. S. 113, § 3, now § 117, *? Refers to 2 R. S. 448, § 11, Decedent Estate Law. now § 121, Decedent Estate Law. ** Refers to 2 R. S. 113, § 3, now § 117, Decedent Estate Law. Appendix III REPORT OF COMMISSIONERS OF STATUTORY REVISION ON ARTICLE IX OF THE REAL PROPERTY LAW, CHAPTER 46, GENERAL LAWS, Now Become Article 3 of the Decedent Estate Law, [559] ARTICLE IX. The Descent of Real Property. Section 280. Definitions and use of terms; effect of article. 281. General rule of descent. 282. Lineal descendants* of equal degree. 283. Lineal descendants of unequal degree. 284. When father inherits. 285. When mother inherits. 286. When collateral relatives inherit; collateral relatives of equal degree. 287. Brothers and sisters and their descendants. 288. Brothers and sisters of father and mother and their descend- ants. 289. Illegitimate children. 290. Relatives of the half blood. 291. Cases not hereinbefore provided for. 292. Posthumous children and relatives. 293. Inheritance, sole or in common. 294. Alienism of ancestor. 295. Advancements. 296. How advancements adjusted. § 28a Definitions and use of terms; effect of article. The term " real property " as used in this article, includes every estate, interest and right, legal and equitable in lands, tenements and hereditaments except such as are determined or extinguished by the death of an intestate seized or pos- sessed thereof, or in any manner entitled thereto ; leases for years, estates for the life of another person; and real property held in trust, not devised by the beneficiary. " Inheritance " means real property as herein defined, descended according to the provisions of this article ; the expressions '' where the inheritance shall have come to the intestate- on the part of the father " or " mother," as the case may be, include every case where the inheritance shall have come to the intestate by devise, gift or descent from the parent referred '^o, or from any relative of the blood of such parent. When in this article a person is described as living, it means living at the time of death of the intestate from whom the descent came; when he is described as having died, it means that he died before such intestate. This article does not affect a limitation of an estate by deed or will, or tenancy by the curtesy of dower. R. S. 2466, 2467, pt. II, chap. 2, §§ 20, 21, 27, 28, 29, unchanged in substance. 36 [561] 562 Report of Commissioners. § 281. General rule of descendant. The real property of a person who dies without devising the same shall descend: 1. To his lineal descendants. 2. To his father. 3. To his mother; and 4. To his collateral relatives, as prescribed in the following sections of this article. R. S. 2463, pt. II, chap. 2, § I, unchanged in substance. § 282. Lineal descedants of equal degree. If the intestate leave de- scendants in the direct line of lineal descent, all of equal degree of con- sanguinity to him, the inheritance shall descend to them in equal parts how- ever remote from him the common degree of consanguinity may be. R. S. 2463, pt. II, chap. 2, § 2, unchanged in substance. § 283. Lineal descendants of unequal degree. If any of the descend- ants of such intestate be living, and any be dead, the inheritance shall descend to the living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestor would have received. R. S. 2463, 2464, pt. II, chap. 2, §§ 3, 4, unchanged in substance. § 284. When father inherits. If the intestate die without lawful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee. R. S. 2464, pt. II, chap. 2, § S, as amd. L. 1830, chap. 320, § 13, unchanged in substance. § 285. When mother inherits. If the intestate die without descend- ants and leave no father, or leave a father not entitled to take the inherit- ance under the last section, and leave a mother, and a brother or sister, or the descendant of a brother or sister, the inheritance shall descend to the mother for life, and the reversion to such brothers and sisters of the intes- tate as may be living, and the descendants of such as may be dead, accord- ing to the same law of inheritance hereinafter provided. If the intestate in such case have no brother or sister or descendant thereof, the inherit- ance shall descend to the mother in fee. R. S. 2464, pt. II, chap. 2, § 6, unchanged in substance. Appendix III. 563 § 286. When collateral relatives inherit; collateral relatives of equal degrees. If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of con- sanguinity may be. R. S. 2464, pt. II, chap. 2, i 7, unchanged in substance. § 287. Brothers and sisters and their descendants. If all the brothers and sisters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leav- ing issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees. R. S. 2464, 2465, pt. II, chap. 2, §§ 8, 9. The word "collectively" was inserted by the Legislature. § 288. Brothers and sisters of father and mother and their descend- ants. If there be no heir entitled to take, under either of the preceding sections, the inheritance, if it shall have come to the intestate on the part of his father, shall descend: 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living. 2. If any be living, and any shall have died, leaving issue, to such broth- ers and sisters as shall be living and to the descendants of such as shall have died. 3. If all such brothers and sisters shall have died, to their descendants. 4. If there be no such brothers or sisters of such father, nor and descend- ants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters, and their descendants ; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. 564 Report of Commissioners. In all cases mentioned in this section the inheritance shall extend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. R. S. 2465, pt. II, chap. 2, §§ 10, II, 12, 13, unchanged in substance. § 289. Illegitimate children. If an intestate who shall have been ille- gitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit. R. S. 246s, pt. II, chap. 2, §§ 14, 19; Id. 2468; L. 1855, chap. 547, § i. unchanged in substance. § 290. Relatives of the half blood. Relatives of the half blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of the ancestor shall be excluded from such inheritance. R. S. 2465, pt. II, chap. 2, § 15, unchanged in substance. § 291. Cases not hereinbefore provided for. In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of common law. R. S. 2466, pt. II, chap. 2, § 16, unchanged in substance. § 292. Posthumous children and relatives. A descendant or a relative of the intestate begotten before his death, but born thereafter, shall inherit in the same manner as if he had been born in the lifetime of the intestate and had survived him. R. S. 2466, pt. II, chap. 2, § 18, unchanged in substance. § 293. Inheritance, sole or in common. When there is but one person entitled to inherit, he shall take and hold the inheritance solely; when an inheritance or a share of an inheritance descends to several persons they shall take as tenants in common, in proportion to their respective rights. R. S. 2466, pt. II, chap. 2, § 17, unchanged in substance. § 294. Alienism of ancestor. A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor. R. S. 2466, pt. II, chap. 2, § 22, unchanged in substance. § 295. Advancements. If a child of an intestate shall have been ad- vanced by him, by settlement or portion, real or personal property the value thereof must be reckoned for the purposes of descent and distribu- tion as part of the real and personal property of the intestate descendible Appendix III. 565 to his heirs and to be distributed to the next of kin; and if such advance- ment be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceased, such child and his descendants shall not share in the estate of the intestate; but if it be less than such share, such child and his descendants shall receive so much, only, of the personal property, and inherit so much only of the real prop- erty, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or educating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or a power in trust, with a right of selection, is an advancement. R. S. 2466, 2467, pt. II, chap. 2, §§ 23, 24, 25, 26; Id. 2450, pt. II, chap i, tit. II, § 127, unchanged in substance. § 296. Hov? advancements adjusted. When an advancement to be adjusted consisted of real property, the adjustment must be made out of real property descendible to the heirs. When it consisted of personal prop- erty, the adjustment must be made out of the surplus of the personal property to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other. New; drawn to correspond with the provisions of the Code of Civil Procedure. GENERAL INDEX. [References are to pages. References to the sections of the statute will be found in the Table of Contents.] ACCUMULATION trusts for, 189 ADMINISTRATION jurisdiction of, in England considered, 29 jurisdiction of, in New York considered, 32, 34, 35, 36 ancillary, 309, 325 letters of, defined, 327 order of letters of, 440, 462 by husband, when, 472, 473, 486, 487 ADMINISTRATOR trust funds, how to be invested by, 493 title of, 503 when chargeable personally for debts, 505 of executor, when liable for predecessor's debts, 508 de bonis non, rights of, 510 has same rights and liabilities as executor, 516 actions by or against, regulated, 513. S16, 524 actions of trespass by, 518 actions of trespass agsfinst, 521 See Administration ADOPTED CHILDREN rights in real property of, by descent, 358, 362, 366, 367 when father inherits from, 362 when mother inherits from, 378 ADOPTION Statutes, relative to, 358, 359 by contract, 362 rights of father by, 362 rights of mother by, 378 rights of children by, on distribution, 449 [567] 568 General Index. [References are to pages.] ADVANCEMENTS definition of, 422, 468 regulated by statute, 419, 464 application of the doctrine of, 423, 465 what are, 424, 425, 426 how proven, 426 how to be adjusted, 427, 469 of personal estates, 464 history of the rule regulating, 466 statute regulating, applies when, 467 AFTER-BORN CHILD born after parents' will, when protected, 215 action by, for share of parents' estate regulated, 229 See Posthumous Child AGE influence of, on power to testamentate, 55 requisite, for a devise, 50 requisite, for a testament, 78 presumptions of death without issue from, 177 ALIENS can not take by devise, when, dfj, 71, Ti may be beneficiaries of trusts in lands, 75, 82 may bequeath personal property, 82 can not be executors, 82 no title by descent cast on, 363, 418 may take real property by statute when, 418. descent when fathers are, 388 alien uncles and aunts, excluded from taking by descent, 398 alien brothers of illegitimates, do not take, 403 title through, 416 not precluded by alienism of ancestor, 416 may take personalty of intestate on a distribution, 463 may take by bequest, 82 ALLOGRAPHIC WILL considered, 121, 122 See Wills AMBIGUITIES. See Construction, Rules of ANCESTOR definition of, 406, 417 descent from an alien, 388 legal effect of alienism of, 416 General Index. 569 [References are to pages.] ANCILLARY LETTERS of administration, when issued, 309 on foreign wills, 325 ANIMUS TESTANDI defined, no, in proof of, essential to probate of a will, no of itself insufficient to constitute a will, 112 presumption of, 112 publication, proof of, 121 See Publication ANNUITIES considered, 195 when given to trust beneficaries, 195 APPRAISAL of estate of deceased persons, 529 ATTESTATION of a will, 106, 113 clause, form of, 113, 114 (note) clause, not indispensable, 131, 132 clause, importance of, 132 See Declaration ATTESTING WITNESSES. See Witnesses AUNTS take real property by descent, when, 389 paternal, take real property by descent, when, 389 maternal, take real property by descent, when, 389 when aliens excluded from taking by descent, 398 of the half-blood, 407 take personally of intestate, when, 429, 462 AUTHENTICATION of papers from another State or foreign county for use in this State, 310 BAR ASSOCIATIONS restrictions on devises and bequests to, 100, 104 BENEFICIAL INTERESTS do not ordinarily pass by devise, 65 what, do pass by devise, 65 may be given to whom, 188 570 General Index. [References are to pages.] BENEFICIARIES of trusts, 188 power of, to appoint remainder, 193 of trusts with power to appoint generally, may resettle estate, 194 BENEVOLENT SOCIETIES wills in favor of, when void, 88 BEQUESTS are a " will " of personalty, 78 contrasted with devise, 78 how to be executed, 106, 205, 206, 303, 305 capacity to bequeath, 78, 79 restrictions on charitable, 88-105 to attesting witness are void, 222 when they lapse, 232-241 revocation of, 246 revocation of, by marriage and birth of issue, 261 of unmarried women are revoked by marriage, 26s bond or agreement to convey property bequeathed not a revocation of, 271 BROTHERS take real property by descent, when, 386 descent between brothers and sisters is immediate, 388 take personal property of intestates, when, 429, 455 BURIAL GROUNDS descent of private, 343 CANCELLATION of wills, regulated, 246 CANON LAW some account of, 30 CAPACITY to devise, 50-60, in to make a testament, 78-83, ill to take by devise, 67, 71 restrictions on, to will, 88-105 of witnesses to a will, 116 CEMETERIES descent of rights in, 343 General Index. 571 [References are to pages.] CHARITABLE USES regulated, 88 restrictions on devisee or bequests to, 88 CHILDREN of testator born after making of will, to inherit, 215, 413 action for share of inheritance of posthumous, regulated, 229 protected from " lapse " of devise, 232 rights of illegitimate, by descent, 358 take real property by descent, 349, 364 adopted, 359, 449 legitimated, by parents' subsequent marriage, 368, 379 posthumous, take by descent, when, 412, 450 who are " advanced," take what by descent, 419 theory and application of " advancements " to, 423 take personal property of intestate, 429, 453 rights of illegitimate, 358, 430, 449 See Posthumous Child; Illegitimate Children CIVIL DEATH effect of, on wills considered, 60, 81 CLAUSE OF ATTESTATION. See Attestation CLERK OF COUNTY to receive wills for safe-keeping, 242 wills to be recorded with, 294 CODICIL defined, 47, 134 republication of will by, 134 when revoking prior will, 249 COLLATERALS who are, 346, 382, 383 successions by, 346, 349 descent of real property to, 349, 380, 386 are " descendants," 382 inheritances by, 389, 395 distribution of personal property among, 430, 431 when no representation among, after brothers' and sisters' children, 431, 4S6, 461 CONDITIONAL LIMITATION what is a, 146, 176 when settlement takes effect as, 182 confusion regarding term, 183 572 General Index. [References are to pages.] CONDITIONAL WILLS considered, 136 CONJOINT WILLS considered, 136 how revoked, 258 CONSTRUCTION of wills, ^(s, 19s, 320 of title by devise, 345 CONSTRUCTION, RULES OF wills speak as of time of testator's death, 76 estates devised, saved if possible, 150 devise of valid estates separated from illegal devise, 80, 150 as applied to wills, 76, 195, 196, 197, 198, 199, 200, 201, 320, 326 of ambiguities in wills, 201, 202 title by descent preferred to title by devise, 345 intent of testator to be observed, TJ, 196, 197 blood of ancestor favored in descent, 34s CONTINGENT when estates are, 14s, 146 limitations, when void, 148, 149 See Remainders CONTINGENT REMAINDERS when pass by devise, 63, 64, 142 when contingent by reason of collateral event, 150 what, are descendible, 340 See Remainders CORPORATIONS when cannot take by devise, 67, 68, 69, 70 wills in favor of certain, void, 88, 95, 97, 99, 103 COUNTY CLERK. See Clerk of County COURTS CHRISTIAN some account of, 28 influence of, on wills, 19 COUSINS take real property by descent, 389 take personalty of intestate, when, 429, 462 General Index. 573 [References are to pages.] COVERTURE former disability of women by, 59 CROSS-EXECUTORY LIMITATIONS not formerly implied in devises, 183, 184 CROSS-REMAINDERS what are, 172 at common law, 167, 168 after statutes abolishing entails, 170 now permissible by statute, 171, 172, 173, 174 CURTESY tenant by the, not affected, when, 330 nature of tenancy by the, 338 rights of tenant by, saved by statute, 338 nature of title by, considered, 409 when issue of marriage is posthumous, 413 DATE no part of a will, no DEBTS liability of devisee for testator's, 478, 483 DECEDENT ESTATE LAW title of, considered, 43, 44 DECLARATION considered, 121 by testator essential to will, 106, 116, 119 of prior subscription by testator, 106, 116, 118 is equivalent to " publication," 106, 121, 123 See Publication DEFINITIONS advancements, 422, 468 ancestor, 406, 417 animus testandi, no, in, 112 assets, 327 codicil, 47, 134, 327 death, 341 debts, 327 decedent, 44 descent, 331, 332, 349, 383 574 General Index. [References are to pages.] DEFINITIONS — Continued devise, 45 domicile, 210, 322 ■'end of a will," 106, 112, 113 ex parte materna, 371 ex parte paterna, 392, 393 "factum," no. III " having died," 330 infant, 78, 80 inheritance, 328, 346, 408 intestate, 327 legitim, 3, 439 living, 330 next of kin, 328 non compos mentis, 55 owner, 438 ownership, 438, 439 personal property, 328 " publication of a will," 121, 123 real property, 6z, 328, 329, 340, 34I remainder, 176 representation, 446 residence, 210, 322 seisin, 341, 352, 358 testament, 6, 23, 45 will, 2, 4S, 46, no, III, 127, 327 DEPOSIT OF WILLS in public offices, regulated, 242-245 withdrawal of, regulated, 244 DESCENDANTS lineal, take real property by descent, 349 collateral, 382, 383 who are, 349, 382 take personal property, when, 429, 453 DESCENT of real property, 329-428 article of the statute regulating, 329-428 term defined, 331, 349 how regulated, 350 brief history of the laws of, 333, 334, 350 of " reversions," 137, 341 of contingent remainders, 341 General Index. [References are to pages.] DESCENT — Continued of vested remainders, 342 of fixtures, 342 of rents, 342 of crops, 343 of pews, 343 of vaults, 343 of graves, 343 of rights in cemeteries, 343 of lands mortgaged, 343 of lands condemned, 344 of infants' lands sold in partition, 345 title by, preferred to title by devise, 345 construction of rights by, 345 rules of, favor blood of ancestor, 345 common law rules of, 351 statutory changes in rules of, 355 to lineal descendants, 349, 364, 367 to father, 349, 369 to mother, 349, 375 to collateral relatives, 349 to widow, 358 to legitimated children, 358 to adopted children, 358, 359, 366 to adoptive father, 362 to aliens, 363 to father of intestate, 349, 369 to grandparents of intestate, 375 to mother of intestate, 349, 375 to collateral relatives, 380, 389 to brothers and sisters, 386 to descendants of brothers and sisters, 386 to half-blood, 387, 404 to collaterals, 389 to relatives of husband or wife, 408 in cases not provided for by statute, 410 to several heirs, not a joint tenancy, 414 when ancester an alien, 416 subject to " advancements," 419 DEVISE differs from a testament, 6, II abstract right to, considered, 11, 12, 16, 18, 21 right to, independent of Statute of Wills, 6, 9, 15 who may now, 50 575 576 General Index. [References are to pages.] DEVISE — Continued what real property may be devised, 6i, 62 validity of a particular, governed by Real Property Law, 66, 136, 137 of real property governed by the law of this State, 106, 116, 206, 207, 208, 303, 320 who may take by, 67 to corporations, void unless empowered to take, 67 to aliens void, 71 to Porto Ricans, considered, 74 to Filipinos, 74 to persons, citizens of subject countries, 74 how construed, 76, 320 election under, 80, 81 to charitable corporations void, when, 88 to benevolent, charitable, literary, scientific, religious, associations or corporations, void, when, 88 a species of conveyance, 107, 108, 303, 304, 322 when executed out of New York State, 106, 116, 117, 205, 206, 207, 208, 303, 320, 326 validity of, must conform to Real Property Law, 66, 136, 137 to attesting witness void, 222 to child or descendant not to lapse, 232 when it lapses, 232-241 revocation of, 246 revocation of, by marriage and birth of issue, 261 of unmarried women, revoked by marriage, 265 bond or agreement to convey property devised, not a revocation of, 271 to be recorded, when, 289 effect of failure to probate and record, 316 may be void when bequest in same will valid, 321, 326 title by descent, preferred to title by, 345 DEVISEE when liable for testator's debts, 478, 483 DISTRIBUTION some account of statute of, 347, 437 article of the statute regulating, 429-471 of intestates' estates regulated, 429-471' in New York, 443 Revised Statute of, 446 law of intestate's last domicile governs, 448 time for fixing, 448 law governing, 448 See Statute of Distributions General Index. 577; [References are to pages.] DOCUMENTS not attested, can not be incorporated in will by cross-reference, 115 not executed as a will, not probative, 115 DOMICILE defined, 210, 322 effect of change of, 211, 448 of origin, 211 of married woman, 322 DOWER tenant in, not affected, when, 330 title by, 409, 452 DUPLICATE WILLS considered, 136 how revoked, 258 " DYING WITHOUT ISSUE " OR HEIRS how construed, 177, 178 ELECTION when devise void, devisee not put to his election, 80, 81 ESCHEATS for alienage, 72 ESTATE every, in real property, if descendible, is devisable, 61, 62, 136 devised, must conform to Real Property Law, 136, 137 what, devisable under existing law, 137-195 of trustees of express trusts, 187, 188, 190 of trustees, when subject to vested life estate, 195 created by deed, not affected by Statute on Descents, 330, 339 ESTATES FOR LIFE devise of, 137, 138 limitation of successive, 138 limitation of contingent, 138 limitation of fee after two, 143, 191 of devisees, 139 when accelerative, 139, 140 vested, 139 at common law, 140 successive, must be to persons in being, 140 when followed by contingent remainders, 149 power to tenant of, to consume estate, 184 578 General Index. [References are to pages.] ESTATES IN TRUST. See Trusts ESTATES PUR AUTRE VIE are devisable, 62 how to be limited, 138 one qualification of estates for life of grantee, 141 remainder on, 141 EXECUTION OF WILLS regulated, 106-134, 203 when in conformity with laws of other states, 205 out of the State, 205 effect of change of testator's residence on prior, 209, 213 EXECUTORS defined, 500 aliens cannot be, 82 appointment of, not necessary to validate nuncupative wills, 87 have not to do with real property, 490 sales of real estate by, regulated, 490 investment of trust funds by, 493 de son tort abolished, 499 history of the office of, 501 title of, S02, S03 when chargeable personally for testator's debts, 505 of executors, when liable for predecessor's debts, 508 actions by and against, 513. S16, 518, 521, 524 actions of account against, 513 actions on contract against, 513 actions of trespass by, 518 actions of trespass against, 521 of executors, no authority, when, 518 EXECUTORY DEVISES considered, 184, 185 EXECUTORY LIMITATIONS considered, 142, 151, 152, ISS, IS7. IS9, 176, 177. i78, 179, 181 FACTUM of a will, 109, no. III FATHER takes real property by descent, 349 when he inherits real property, 369 when he does not inherit, 371 General Index. 579 [References are to pages.] FATHER — Continued if mother be dead, father takes life estate, when, 369, 374 inherit from adopted children, when, 375 inherit real property from legitimated children, when, 375 ' takes personal property of intestate, when, 430, 454 FEE ' limitation of "a fee upon a," 142, 151, 152, 153, 155, 156, 166, 176, 178, 179, 180, 181, 190, 191 limited after two successive life estates, 143, 191 FIEFS some, inalienable by the feudal law, 18 FILIPINOS may take by devise, 74 FIRE ORGANIZATIONS restrictions on devises and bequests to, 103, 104 FIXTURES descent of rights to, 342 FOREIGN WILLS probated here, how to be executed, 116, 303, 306 effect of record of probate of, 309 ancillary letters on, 325 GENERAL GUARDIANS investments by, 493, 496 GRAND CHILDREN take real property by descent, when, 349, ' 365 take personal property of intestates, when, 429 GRAND NEPHEWS AND GRAND NIECES take real property by descent, when, 389 take personal property of intestates, when, 429, 457 GRAND PARENTS take real property by descent, when, 376, 389, 398, 411 take personal property of intestate, when, 429, 458, 461 GREAT GRAND CHILDREN take real property by descent, 349, 365 take personal property of intestates, when, 429 580 General Index. [References are to pages.] GREAT GRAND NEPHEWS AND NIECES inherit real property by descent, when, 389 take personalty of intestates, when, 429, 430 GREAT GRAND PARENTS inherit real property, when, 37s, 376, 398 take personalty of intestate, when, 429, 461 GREAT UNCLES AND AUNTS take by descent, when, 411 great aunts take as coparceners, 415 take personalty of intestate, when, 429, 458, 461, 462 HALF-BLOOD relatives of the, take by descent, when, 387, 396 relatives of the, take personal property, how, 404, 431, 441 uncles and aunts take by descent, when, 407 admitted on distribution, 450^ 451 HAWAIIANS I may take by devise, 74 HEIRS remainders to " heirs " of living person, 143, 144, 147 no descent cast on alien, 363 in descents, presumption favors, 363 when liable for intestate's debts, 478, 483 HOLOGRAPHIC WILL considered, 121 publication of, 125 HUSBAND AND WIFE relatives of either, take by descent, when, 408 rights of husband to administer, 472, 473 husband's rights to deceased wife's personalty, 474 action against husband for debts of deceased wife, 486 IDIOTS can not devise, 50, 54, 55 ILLEGITIMATE CHILDREN rights of, 3S8 how legitimated by parents' subsequent marriage, 368, 400, 402 inheritance from, 379, 399, 400, 401, 402, 403, 417 General Index. 581 [References are to pages.] ILLEGITIMATE CHILDREN —Continued legal presumptions as to, 403 descent through, 417 distribution of personal property of, 430 inherit from mother, when, 431 take on a distribution of what intestate's estates, 449, 462 INCORPORATION OF DOCUMENTS documents not attested, not probative by cross reference in will, 115 INDEX County Clerks', of recorded wills regulated, 294 INFANTS incapable of devising real estate, 50, 54, 56 who are, considered, 56, 78, 79 some, may make wills of personalty, 78, 80 INHERITANCE definition of, 408 methods of computing degrees in an, 346 when sole or in common, 414 INTENT of testator to be observed in construction, ^J^ INTEREST every descendible interest in real property is devisable, 61, 62 INTESTACY succession to movable property on, 27 distribution on, regulated, 429 INVESTMENTS of executors, administrators, and other trustees regulated, 493 JOINT TENANTS may not devise, 60, 62 do not take by descent, 414 JURISDICTION of wills and testaments considered, 20 of decedents' estates in England, 29 of decedents' estates in New York, 32 of Surrogates, i, 38, 39, 40, 41. 94, 202, 242 582 General Index. [References are to pages.] LANDS defined, 62 generally devisable before the Statute of Wills, 9, 12, 16 pass by devise, 61, 62 distinction between taking and holding, 72 wills of, how to be executed, 106, 116, 117, 205, 206, 207, 208, 303, 320, 326 condemned, descent of, 344 mortgaged, descent of, 343 partition of, effects of on descent, 345 LAPSE devises or bequests to child or descendant do not, 232 doctrine of, considered, 232-241 LAWS REPEALED enumeration of, S3i LEGITIMATED CHILDREN by subsequent marriage of parents, 368 inheritance from, 379 LIFE ESTATE See Estates for Life LIMITATIONS OF ESTATES (RULES OF) must not contravene rule against perpetuities, 138 remainders limited on more than two vested life estates are ac- celerated, 139, 143 remainder limited on estate pur autre vie must be in fee, 141 invalid devises will be separated from valid devises and the latter saved, 150 fees may now be mounted on fees by legal limitations, 142, 151, 152, 153. ISS, 156, 176, 178, 179 vested estates do not suspend power of alienation, 161 " dying without issue " means without issue at the death of the person first named as ancestor, 177 Rule in Shelley's Case abolished, 178, 179 LINEAL DESCENDANTS take by descent, 349, 358 of equal degree take per capita, 364 LITERARY SOCIETIES certain devises and bequests to, void, 88 General Index. 583 [References are to pages.] MARK testators and witnesses may subscribe will by, 118 MARRIED WOMEN legal disabilities of considered, S9, 81 may devise, if of full age, 59 being infants, can not devise, 78, 79, 81 prior wills of, revoked by their marriage, 265 property rights of, regulated by statute, 266 Statute of Distributions now applies to estates of, 441, 463, 472, 476 acts enabling married women, 475 MISSIONARY SOCIETIES certain devises or bequests to void, 88 MORTGAGE descent of lands, subject to a, 343 MORTMAIN ACTS considered, 67, 68 MOTHER takes real property by descent, 349, 377 when she takes a fee by descent, 377, 378 when she takes a life estate, 2)7T> 378 inherits from adopted child, 378 inherits from illegitimate children, 379, 399, 402 takes personal property of intestate, when, 430, 454, 458 MUTUAL WILLS considered, 136 how revoked, 258 NEPHEWS AND NIECES take real property by descent, when, 389 take personal property of intestates, when, 429, 430, 457 NEXT OF KIN take personal property of intestate, when, 429, 431, 458 who are, 458, 459, 460 NIECES See Nephews and Nieces NOTES of the Board of Statutory Consolidation, 535 of the Revisers of the Revised Statutes, S43 of Commissioners of Statutory Revision, 561 584 General Index. [References are to pages.] NUNCUPATIVE WILL who may make, 84 account of, 84-87 executor not necessary to valid, 87 ORAL WILL See Nuncupative Will ORPHANS on distribution entitled by statute to certain personalty if minors, 454 PARENTS See Father; Mother PERPETUITIES rule against, applies to devises, 67 importance of rule against, in limitation of future estates, 138, 176 in limitation of estates pur autre vie, 141 invalidity for '' remoteness '' considered, 157-167 use of rule against, 163 trusts tend to create, 188 rule against, applies to powers, 193, 194 vested estates do not create, 195 PERSONAL PROPERTY defined, 328, 347 medieval law of, 23 who may make wills of, 78 wills of, how executed, 106, 205, 206, 303, 305, 320, 324 situs of, 324 will of, may be valid when a devise in same will is invalid, 326 conversion of, for purposes of descent, 344 distribution of intestate's, 429-463 of married women, how distributed, 472, 473, 474 PERSONS OF UNSOUND MIND incapable of devising real estate, 50, 54, 55 PEWS are incorporeal hereditaments, 343 descent of, 343 PORTO RICANS may take by devise, 74 POSSIBILITY OF REVERTER is devisable, when, 64 is descendible, when, 341 General Index. 585 [References are to pages.] POSTHUMOUS CHILD rights of, in estate of testate parent prescribed, 215 action to enforce such rights of, regulated, 229 take real property by descent, 412 take personalty, on a distribution of intestate's estate, 431 POWERS validity of, in a will, 138 to tenants for life to consume estate, 184 to tenants for life to dispose of fee, 184, 185 to appoint remainder, 193 doctrine of relation, applies to, 194 to resettle estate, 194, igs PRIMOGENITURE rule of descents at common law, 11 prevailed in New York, 335, 351 rule of, abolished in New York under certain degrees, 350, 411 PROBATE jurisdiction of, in New York, 32, 35-42 effect of, on devise of real property, 40, 106, 116, 117, 206, 208, 303, 304, 320 effect of, on will of personalty, 106, 205, 206, 303, 305, 320 PROPERTY defined, 63 when, after acquired, passes by will, 66 PUBLICATION not necessary to a will before the Statute, 107' of a will now essential, 106, 121 definition of, 121 object of, of a will, 123 proof of, 123, 124 of a will, how made, 121-127 of holographic will, 125 See Republication; Declaration PURCHASER bona Me, protected from unrecorded devise, 316 REAL PROPERTY defined, 63, 328 what, devisable, 61, 62 valid testaments may be void as to, 80 586 General Index. [References are to pages.] REAL PROPERTY — Continued wills of, how to be executed, lo6, il6, 117, 20S, 206, 207, 208, 303, 320 condemned, descent of, 344. mortgaged, descent of, 344 executors do not take, 490 RECORD of wills, in County Clerk's ofHces regulated, 289 of wills proved in another state or foreign country, 296 effect of, on foreign will, 309 REGISTER OF DEEDS to receive will for safe keeping, 242 RELIGIOUS SOCIETIES certain devises and bequests to, void, 88 REMAINDERS pass by devise, 63, 142 on estates pur autre vie must be in fee, 141 perpetuity in limitation of, considered, 141 when vested, 142, 143, 184, 185 when contingent, 145, 148, 149, 185 classified, 146 contingent only by reason of collateral event, 150 in fee, permissible by Statute, 151 when accelerated, 150, 151 when fee simple defeasible, 152 over in fee, in case first contingent, remainder divest during first taker's non-age, 156 to one when he becomes of age, 17s on failure of issue of first taker, 176 favored by construction, 182 limited over on trust estates, 190 descendible, 341, 342 REMOTENESS doctrine of invalidity for, considered, 157-167, 180 RENTS are hereditaments and pass by devise, 65 descent of, 342 General Index. 587 [References are to pages.] REPRESENTATION not admitted among collaterals after brothers' and sisters' children, 431. 4S6, 461 taking by, 446, 452, 453, 457 RE-PUBLICATION wills may be republished, 134 wills, how republished, 134 by codicil, 134 of revoked will, 260 REQUESTS to attesting witnesses to act as such necessary, 129 REVERSIONS are devisable, 64, 137 when not devised, descend, 137 on contingent fees considered, 155 when they vest by descent, 341 REVOCATION of wills regulated, 246 of wills considered, 247, 248 of will by subsequent will or codicil, 249 of will by obliteration, 246, 248, 257 of will by destruction, burning or tearing, 246 of conjoint or mutual wills, 258 of wills executed in duplicate or parts, 258 by another than testator, 246, 259 express, 248, 252 implied, 249, 272 presumptions concerning, 259 by marriage and birth of issue, 261 of will of unmarried woman by her marriage, 265 bond or agreement to convey property devised or bequeathed not a revocation of prior will, 271 implied or constructive, abrogated, 260 of will, when declared, 270 charge or incumbrance not a, 275 conveyance, when not a, 277 conveyance, when a, 282 of later will does not revive prior will, 285 RIGHT OF ENTRY when not devisable, 64, 65 588 General Index. [References are to pages.] ROMAN LAW its influence on the modern law of wills, 2 of wills differs from Anglo-American law of wills, 3 SCHEME OF A WILL considered, 137-195 SCIENTIFIC SOCIETIES certain devises and bequests to, void, 88 SEAL will need no longer have a, 106, 109, 110 SHELLEY'S CASE (Rule in) abolition of the rule in, 178 SISTERS inherit real property, when, 386 descent between brothers and sisters is immediate, 388 of illegitimate, take when, 403 take personal property of intestates, when, 429, 455 STATUTE OF DISTRIBUTIONS some account of, 437 present form of, 429 construction of, 440 in New York, 443 legal theories concerning operation of, 447 applies to surplus only of intestate's estate, 449 applies, when, 449 general scheme of, 451 applies to estates of married women, 463, 472 See Distribution STATUTE OF FRAUDS amended the Statute of Wills, 51, 52 (29 Car. II) in force in New York, 85 STATUTE OF WILLS some account of original, 25 in New York, considered, 50, 52 incompleteness of, 53, 6l SUBSCRIPTION to wills regulated, 106 by testator essential to will, 106, 116 General Index. 589 [References are to pages.] SUBSCRIPTION — Continued by testator, must be at the end of will, 106, 112, 113, 114, 116 by witnesses, 106 testators', must either be in presence of witnesses, or else acknowledged to -them, 106, 116, 117, 119, 120 testator's, to be before that of witnesses, irj, 117 may be by mark, 118, 119 character of, discussed, 118 SUBSEQUENTLY ACQUIRED PROPERTY passes by devise, 66 SURROGATES possess limited jurisdiction over devises, i, 40, 41, 94, 202 to receive wills for safe keeping, 242 courts of, 38, 39 SUCCESSION intestate, considered, i, 27 TENANCY when joint or several, 414 TENANTS IN COMMON in inheritances heirs take as, 414 TESTAMENT power of testamentation discussed, 2 differs from will, 6, 23 is a will of personalty, 23, 108 medieval law regulating, 23, 108 definition of, 6, 23, 45 informal nature of, before Statute of Wills, 107, 108 informal, put an end to by R. S., 108 statutory requisites of a, 106 how to be executed out of the State, 116 TESTIMONIUM CLAUSE of a will, 113 TORTS actions for, when revived, 508, 512, 518, 519, 521, 524 TRESPASS actions of, against executors and administrators, 518, 521 590 General Index. [References are to pages.] TRUSTEES estates of trustees for express trusts, 187 estates of trustees subject to vested life estates, 195 estate of trustees subject to annuities, 195 investments of trust funds by, 493 TRUSTS some beneficial interests under, not devisable, 65 limitation of estates on, 138 devises of estates on, r8s, 186, 187, 188 beneficiaries of, 188 for accumulation, 189 remainders limited on estates on, 190 charges on estates held on, 195 funds held on, how to be invested, 493 UNMARRIED WOMEN will of, revoked by her marriage, 265 UNCLES take real property by descent, when, 389 paternal, take real property by descent, when, 389 maternal, take real property by descent, when, 389 being aliens, do not take by descent, 398 of the half-blood, 407 take personally of intestate, when, 429, 462 USES wills of, enforced before the Statute of Wills, 23 VAULTS descent of rights in, 343 VESTED when estates are, 142, 185 reversions, 341 See Remainders VETERINARY MEDICAL SOCIETIES restriction on devises and bequests to, 103, 104 WIDOW does not take by descent, 358 takes personal property, when, 429, 452, 453, 458 See Dower WIFE. See Husband and Wife General Index. 591 [References are to pages.] WILLS historical phases of, considered, 1-44 history of power to make, considered, 2, 5, 6 origins of law of, 2 differ from " testaments," 6 right to make, considered, 11 influence of the church on the law of, 19, 501 jurisdiction of probate of, in England, 29 jurisdiction of probate of, in province of New York, 32 jurisdiction of probate of, in State of New York, 35 definition of, S, 45, 46, no, in prior to the Revised Statutes, 48 who may make, 50 law of, how divided, 54 how construed, 76, 195, 201 nuncupative regulated, 84 to be in writing, 84, 109 to be subscribed, 106, 116, 117 in favor of certain societies and corporations, void, 88 subscription to be at end of, 106, 112, 113 what is the end of, 113, 114, 115 how to be executed, 106-136, 203, 205 to be on what material, 109, no seal unnecessary to, 105, 109, no cross-reference to extraneous document's not allowed, 115 testator must subscribe before witnesses sign, 115, 117 testator must subscribe will either in presence of witnesses, or testator must acknowledge subscription, 106, 116 of personalty, how executed in foreign jurisdictions, 116 of real property in New York executed elsewhere, 116, 117 subscription of, considered, 117, 118 publication of, 106, 121-127 attesting witnesses to, 127 are public acts, 127 request to attesting witnesses to act, 129, 130 attestation of, considered, 131, 203 proofs of execution of, 133, 205 how republished, 134 codicils to, considered, 134 conjoint, considered, 136 mutual, considered, 136 conditional, considered,. 136 in duplicate, 136 what estates devisable under, 137-195 scheme of, 137-19S 592 General Index. [References are to pages.] WILLS — Continued what, may be proved, 205 effect of change of testator's residence on prior execution of, 209 doctrine of lapse applied to, 232-241 reception of, for safe keeping, regulated, 242-245 deposit of, in public offices regulated, 243, 244 opening of, deposited, regulated, 245 how revoked or canceled, 246, 261, 265, 271, 275, 277, 282 revoked by subsequent will or codicil, 249 lost or destroyed, 239 of ummarried women revoked by marriage, 265 cancellation or revocation of a second, not to revive a first, 285 record of, in county clerk's offices, regulated, 289 foreign, how recorded, 296 foreign, letters on, 325 authentication of foreign, 310 purchaser when protected from unrecorded, 316 partly void and partly valid, 326 Statute on Descents not to affect wills, 330 WITNESSES attesting, defined, 127, 128, 129 two, at least, essential to a will in writing, 106, 117; to nuncupative or oral will, 84 must sign will at end thereof, 106 attesting, must sign will after testator, 115, 117 capacity of attesting, 116 purpose of attesting, 117, 124 who are attesting, 127, 128, 129 attesting, must be requested to act, 129, 130, 131 attesting, must give their address, 203 devise or bequest to attesting, void when, 222 action by attesting witness for " birth right," regulated, 229 WRITING Wills to be in writing, save those of soldiers' and sailors', 84, 106, 109, 1 10 [whole number of pages 622]